• Discoveries as Scientific Invention: A required Brazilian law evolution.
  • May 16, 2011
  • Law Firm: Demarest e Almeida Advogados - São Paulo Office
  • Biotechnology has an unquestionable role in modern world, and is becoming a necessary pillar to man's evolution.   New forms of life and new types of food never found in nature, the possibility of discovering diseases several years before they begin to show up, the gene therapy, as well as the Earth biodiversity, which includes the sea, fields, forests, air and soil, are examples of what may be achieved or reached with advancement of science.

    In this context, the property rights to biotechnological products have paramount importance for the progress and advancement of this technology.   Brazil has not as yet succeeded in overcoming one of the holdbacks and problems faced by those engaged in this activity, namely to adjust the invention concept to their creation, an indispensable condition for such inventions to be the object of a patent privilege under the Industrial Property Law - Law 9.279/96.    A common practice when trying to define invention in Brazil is to make a distinction between invention and discovery, and the latter is excluded from the patent privilege.

    It is indispensable that the required novelty, provided for in article 8 of Law 9.279/96 which regulates the rights and obligations related to industrial property, be reinterpreted taking into account the facts arising out of new sciences and techniques mentioned above.  The interpretations and studies on the patentability criteria can no longer disregard man's technical progress and pioneer enterprises in the exploitation and change of the reality we do not see, that is, the activities in the microscopic world.

    In the current  context, scientific discoveries are not deemed inventions by the Brazilian law, and thus are not susceptible to patenting.

    However, it is important to analyze and compare discoveries that are no less important than other discoveries, but rather only and solely the outcome of an exhaustive observation and research, with inventive discoveries and juxtapositions resulting not only from man's recognition and research, but also man's direct actions by employing appropriate and complex means and environments for the discovery of a new product, isolated and different from those found in Nature until that moment. 

    The inventiveness level, the complexity involving biotechnological science and its working environment, the increment to the state of technique, the researcher's intellectual capability and creativity must make up satisfactory elements to drive a new approach or interpretation of the novelty criteria under the Brazilian law, in such manner that those scientific discoveries may benefit from the patent law.

    Other laws already surpassed this barrier and are ahead of this context, generating wealth to their respective countries and providing the involved agents with a share in the profits. The appropriate setting up, interpretation and application of the law on this area is part of a strategic policy and has shown to benefit sustainable development, including under the environmental standpoint.   We can no longer shun from this analysis and review of such concepts.