Brazilian_Patent_Reform

33
Imitation was essential to today’s developed countries
According to Chang (2001 and 2009), the historical experience of countries
that are today developed reveals that a strong protection to patents was not an
essential condition to their economic development. Most of them adopted a
lighter, incomplete, system of protection until they caught up with the advanced
stages of development, and many violated other countries’ patent rights. 32
Holland, for instance, has integrally revoked their patent act for 47 years, from
1869 until 1910, so that the country could freely imitate the inventions in the
chemistry field from Germany, their neighbor. 33
And, after consolidating their technological position, those countries that had
adopted weak protection, or even abolished their patent laws, took their turn
in perfecting the international system of patent protection and demanding
protective parity from countries that had not yet matured, and that had not
achieved a substantial level of technological development according to the
standards set by the now developed nations.
Experiences of countries such as Germany, Japan and Switzerland indicate that a low
protection level was a central factor in the strengthening of their productive capacities and
R&D 34 . After overcoming their technological gap, presently developed countries have
strengthened their patent and related rights, limiting access of the others to innovations
they generated and, as such, have dominated technology generation and patenting in a
global level. United States, Germany and Japan account for approximately 80% of the
patents issued in the United States Patent and Brand name Office (USPTO) nowadays
(CIMOLI and PRIMI, 2008). Thus, developed countries maintain technology control
in the international market and have set out to divide nations into two classes: the
technologically capable, and the others.
32 See also, Fábio Konder COMPARATO, A transferência empresarial de tecnologia, 1984.
33 See Adam B. JAFFE and Josh LERNER, Innovation and Its Discontents – How our Broken Patent System is
Endangering Innovation and Progress, and What to Do About it, Princeton, 2004, pp. 86-90.
34 Germany, by adopting the industrial property system, did not allow the patenting of chemical products,
only their production processes. Behind that decision was the need to stimulate industrial innovation by
encouraging research towards more efficient processes regarding the targeted product. That strategy is
considered one of the pillars of the technological success achieved by the German chemical industry since
the end of the 19th century. As for Switzerland, in the 19th century, they did not have an industrial property
law, but they became one of the most innovative countries in the world, inventing textile machinery, steampowered
devices and food processors. The introduction of an industrial property legislation in Switzerland
in 1907 did not appear to bring any significant growth in inventive activities. The author concludes that, in
the case of the Swiss, the absence of such legislation has collaborated with the technological and industrial
development of the country. More recently, Switzerland conducted an empirical study with 350 companies
in the biotechnology field to understand how to propitiate an innovative position in the long term. As a
result, the country opted for imposing limits to the protection of biotechnological inventions aimed at
preventing research from being halted and consequently hidnering technological development in the field.
(Chang, 2001; Li, 2008).