Análise sobre a ADI 5529: formas alternativas a inconstitucionalidade do parágrafo único do art. 40 da Lei nº 9.279/96.

Abstract

The focus of the present work is to analyze the matter that is being discussed in Direct A ction of Unconstitutionality 5529, in the Supreme Federal Court, and to try to understand if its grounds are legitimate and what are the effects for the applicant or patent holder, for the competition, for society, the economic system and the state. The action requires the unconstitutionality of the sole paragraph of art. 40 of Law 9,279 of 1996, known as the Industrial Property Law, which guarantees a minimum term of validity for patents of 10 years, if it is an invention and 7 years for a utility model. of its article, which determines a limit of 20 years for invention patents and 15 years for utility model. The single paragraph is only applied when there is an excessive delay in granting this industrial property right by the National Institute of Industrial Property (INPI). Initially, a general approach is made to the context in which the theme is inserted, in addition to the concepts of industrial property. Then, the importance of invention patents and utility model for the economic and social system is explained, while highlighting the backlog problem, in addition to pointing out that small inventors may be the most affected by this measure. Subsequently, it thoroughly analyzes the fundamentals of A DI 5529 and, for me, exposes less harmful methods that can have better effects than the unconstitutionality of the sole paragraph. To achieve the purpose of this research, the deductive approach method is used, starting from the general lines of Economic Law, Industrial Property Law and Constitutional Law, narrowing the theme until defining the necessary precepts to be observed in the judgment of A DI 5529, making use of the predominantly dogmatic procedure method, based on the basis of published books, articles and materials in the public domain available in electronic research and lectures by professors and scholars on the subject at the Brazilian Institute of Industrial Property (IBPI), in addition to national and international legal documents. The result of the analysis showed that the consequences for the affronts raised on the merits of the action would be aggravated by the desired unconstitutionality, in addition to realizing that there are alternative measures to judicial intervention in the legal provision, and that the State's responsibility would continue to be transferred, not to the society, but for holders of industrial property rights, solving one problem while creating another. It also seeks to pay attention to the situation of small inventors, who, because they do not have great economic powers to support the short term of the patent (without the extension provided for in the sole paragraph), would be the most affected