1. Does competition law apply to the obtainment, grant, acquisition, exercise and transfer of intellectual property rights?
In Brazil, the intellectual property legal microsystem is essentially governed by the Industrial Property Law (Law No. 9,279/96, LPI) and has the National Institute of Industrial Property (INPI) as the organisation responsible for the supervision of rights and obligations established by the LPI. This legislation grants exclusivity to a holder of IPR (namely (i) patents, (ii) industrial design registrations and (iii) trademark registrations – article 5, item XXIX, of the Federal Constitution) for the exploitation of such rights.
The INPI is exclusively responsible for scrutinising the compliance with legal requirements for obtainment and granting of said IPR. On the other hand, competition law may intervene to prevent the abusive exercise of such rights. Thus, in terms of repressive function, the Administrative Council for Economic Defence (CADE) may intervene in the exercise of IPR, analysing, to that end, to what extent the obtainment of the rights was conducted in good faith and the exercise of such rights is not abusive or lacks lawful competitive purpose, under the terms of the Brazilian Competition Law (article 36, Law No. 12,529/11).
At this point, it should be noted that CADE is not the sole authority in analysing abusive conditions in exercising an intellectual property right. In fact, the LPI provides for other legal institutes, such as termination of registration, nullity and compulsory licensing processes, in addition to the repression of false geographical indication and unfair competition. CADE’s analysis, however, will be guided by the effects (or potential effects) of a certain conduct on the economic order. Despite this, due to the expertise of the subject and the complementarity of the actions, CADE and INPI have established constant dialogues, to provide the authorities with better input for their analysis. The cooperation between the agencies was embodied in the Technical Cooperation Agreement No. 13/18.
Finally, CADE, within its merger review powers, may recommend the compulsory licensing of IPR (whose enforcement would depend on the INPI) or any other necessary measures as a remedy for the elimination of harmful effects to the economic order resulting from the merger.