DANTAS, B. C. A. M.; DANTAS, Bernardo Cunha Alves de Medeiros.
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
