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Risks involving patent rights in the launching of “new” products on the Brazilian market

The process of launching products on the market is no longer the same. Currently, it is noted that Brazilian companies are more worried about the possible infringement of patent rights of third parties and, consequently, the negative impact that the launch of a product may cause. What was planned to be an act of conquest can become a nightmare for professionals involved in the development, research and marketing

Launching products on the market is an act of high complexity. Regardless of the marketing evaluation and possible profit that the company may have, the legal risks should be evaluated with caution.

Brazilian companies have realized what the American, European and Japanese already do long ago: the evaluation of the existing patent rights is essential before launching products on the market.

Unfortunately, national companies only began to pay attention to this aspect after being, in many cases, accused of infringing patents of their competitors, which, in Brazil, is considered a crime.

The Industrial Property Law 9.279/96 provides, with rare exceptions, that the patent confers on its holder the right to prevent third parties without your consent, directly or indirectly making, using, offering for sale, selling or importing products under patent and process or product obtained directly by patented process.

The same law provides that the patentee is guaranteed the right to obtain compensation for unauthorized exploitation of his invention or utility model.

And it does not stop there, this law also establishes, among other things, that it is a crime to manufacture a product under patent without the authorization of the patentee.

The best way to try to reduce the risks of launching a product without infringing third parties’ rights is the preparation of a study of existing patent protection, known internationally as Freedom to Operate (FTO) report.

In many cases we can find loopholes in the patent documents that allow the launch of products on the market, but only professionals with extensive experience can evaluate the issue with caution and knowledge.

Despite being a little late, it is of extreme importance that the national companies have awakened to this, because everybody should always remember that it is “better prevention than cure”.

Carmen Sánchez-Puelles