Brazilian_Patent_Reform

23
1. Incentive to Innovation
through Patent Rights
The patent system, whether national or international, has been conceived to make an
exchange possible between the public and private spheres. This system is established by
the granting of temporary exclusive exploitation rights, 15 characterized as a temporary
legal monopoly bestowed upon the inventor in exchange for his or her obligation of
revealing his or her invention completely and listing his or her claims in a sufficiently
descriptive manner so that a person having ordinary skill in the art is able to develop the
invention in its entirety, a knowledge that will be immediately available for the general
public, representing additional knowledge for society. 16
Many have argued that the primary goal of this exchange is to stimulate private
investment in innovation through the possibility of obtaining remuneration for research
and development represented by the legal monopoly term for exploitation of the
invention.
Such is the so-called “theory of investment incentive”, 17 which recognizes the inventor
as holder of the exclusive exploitation rights as a way of remunerating for the investments
made during the development of the invention, by means of accumulation of income
from legal monopoly during the patent term. The patent is, therefore, a modality of
incentive to the development of innovation.
In the case of developing countries, innovation and manufacturing activities are not
always developed locally – therefore, without encouragement towards job and income
generation, and without training and local technological development. Faced with this
specificity, clauses for promotion of technology transfer were implemented in several
15 By exploitation, it should be understood manufacture, use, making available for sale, sale, and importation,
according to art. 42 of Brazil’s Patent Act no. 9.279/96.
16 From here on, we will use the expression “temporary legal monopoly” to identify patents. It is imperative to
mention that patents are not necessarily market monopolies, in the economic sense used in the competition
law jargon – but that they may come to be, in some cases. In order to differentiate patents from the
traditional market monopoly – which is a monopoly de facto and not de jure, as the one created by patent
law – we decided to use the expression “temporary legal monopoly”.
17 Several theories were developed throughout the years to serve as basis for patent rights. We can summarize
them in five main theories: i) theory of natural rights, ii) contractual theory, iii) reward theory, iv) incentive
theory and v) theory of investment incentive. The first of them brings the classic naturalistic explanation
for the legal institutes: the creator has a natural right to the patent. The second one sees the patents as a
reward from the community to the inventor for the publicization of their discovery. The incentive theory is
very similar to the contractual theory, but the reward is given for the incentive to well being represented by
the patent. Finally, the incentive theory sees parents as a protection and an incentive for investments made
by companies towards the development of inventions. It is, therefore, an incentive for competition among
businesses. According to this theory, it is rarely possible to identify the inventor in the modern business
world; inventions are usually a collective work from a business organization. Thus, an individual incentive
to the inventor would bear little value. For a critical view of such theories, see: SALOMAO FILHO, Calixto.
“Direito industrial, direito concorrencial e interesse público”. Revista de Direito Público da Economia, Belo
Horizonte, year 2, no. 7, 2004, at 29 and following.