RESTRICTEDWORLD TRADE
ORGANIZATIONIP/C/W/303/Add.1
4 October 2001
(01-4761)
Council for Trade-Related Aspects
of Intellectual Property RightsOriginal:  English
REVIEW OF LEGISLATION
Responses from Brazil to the questions posed by the European Communities
and their member States, Japan and the United States
Addendum
By means of communications from the Permanent Mission of Brazil dated 5 September 2001,
the Secretariat has received the following responses to questions posed by the European Communities
and their member States, Japan and the United States, as circulated in documents IP/C/W/244, 238and 240, respectively.
_______________
EUROPEAN COMMUNITIES AND THEIR MEMBER STATES
A. GENERAL PROVISIONS
1. Please describe if your legislation includes measures necessary to protect public health and
nutrition, and to promote the public interest in se ctors of vital importance to your socio-economic and
technological development as mentioned under Arti cle 8 of the TRIPS Agreement.  If yes, please
explain how such measures are consistent with the provisions of the TRIPS Agreement.
The Brazilian legislation includes measures in conformity with Article 8 of the TRIPS
Agreement, in which specific agencies, according to their competence, are responsible for the
marketing approval of some products.  For instan ce, pharmaceutical, agricultural chemical, alimentary
products, and others that occasionally affect the public health or the environment may have theirmarketing restricted.
In some cases, the Brazilian Government foresees specific measures related to the
development of some technological sectors that are considered important to the industrial
development.
B. COPYRIGHT AND RELATED RIGHTS
2. Please state how your legislation provides for the protection of the exclusive rights of authors
in relation to their literary and artistic works, as  specified in Article 9 of the TRIPS Agreement which
requires Members to comply with Articles 1-21 of the Berne Convention and the Appendix to theBerne Convention (1971)).
Please see Law No.  9.610 of 1998, in particular Articles 22 up to 45.IP/C/W/303/Add.1
Page 2
3. Please describe the protection accorded to authors of computer programs, databases or
compilations of data.
Please see Article 7, XII of Law No. 9.610 of 1998.  See also the specific law concerning the
protection of computer pr ograms, Law No. 9.609 of 1998.
Concerning original compilations of data and databases, please refer to Article 7, XIII of Law
No. 9.610 of 1998, and its paragraph 2.
4. Please state whether your legislation provides for a rental right and, if so, the works to which
it applies.
The rental right, in Brazil, is applied to all kinds of works.
5. Please describe the rights granted to performers, producers of phonograms (sound
recordings) and broadcasting organisations under your legislation.
Please see Articles 90, 92, 93 and 95 of Law No. 9.610 of 1998.
6. Please state whether your legislation provides for any limitation or exception in relation to
each of the rights described above in accordance with the relevant provisions of the Berne and Rome
Conventions and in light of Article 13 and 14.6 of the TRIPS Agreement.
Concerning the neighbouring rights, the Brazilian legislation does not establish any exception
or limitation based on the ones allowed by the Rome Convention.
The provisions of Article 18 of the Berne Convention are also applied.
7. Please state the terms of protection of each right described above and the work or subject
matter to which it applies.
Please see Articles 41 up to 44, and Article 96 of Law No . 9.610 of 1998.
8. Please clarify how the fourth paragraph of Article 2 of Law No. 9609 on the protection of
software, which submits such a protection to a reciprocity principle, is in accordance with the
relevant provisions of the TRIPS Agreement (Articles 3 and 9) and of the Berne Convention
(Article 5) on national treatment.
[Response not received]
9. Please describe how Article 112 of Law 9.610 on the retroactive protection of works in the
public domain, is in accordance with Article 18 of the Berne Convention and Article 14.6 of the
TRIPS Agreement.
In order to answer the question, the Government of Brazil needs a clarification of what is the
understanding of the European Community of Article 18 of the Berne Convention in relation to the
reference to retroactive protection in question and, consequently, what the European Community
understands to be retroactive protection.
Nevertheless, it is to be said that, since the new law has prompt and general effect, it does
affect the later parties of pending facts, when not offending the "ato jurídico perfeito", the "direito
adquirido" and the "coisa julgada", as established in  Article 6 of the Law of Introduction to the Civil
Code (Decree-law No. 4.657 of 4 September, 1942).IP/C/W/303/Add.1
Page 3
C. TRADEMARKS1
10. Please give the definition of a sign under your national legislation and explain under what
conditions it is protectable.
According to the Brazilian Industrial Property Law (No. 9.279 of 1996) any visually
perceptible sign, distinctive and not prohibited by Law shall be registrable as a mark.
11. Please confirm whether or not services are a protectable subject matter in your trademark
law.  Please confirm if signs, such as trade names, are protectable.  Please describe if elements such
as sound, perfumes and containers are protectable.
Service marks are protected according to the Brazilian Industrial Property Law (No. 9.279 of
1996).
It is said that some signs, such as trade names, may be registered as marks, may be registered
under the commercial register, as well as protected by the Commercial Code, including the
Competition Law (No. 8.848 of 1994).
Sounds and perfumes, as well as any other sign that cannot be visually perceptible, must not
be protected.  Containers may be registered as trademarks provided they do not fall into the
prohibitions established in Article 124, XXI and XXII of Law No. 9.279 of 1996.
12. Please explain what the requirements of use are, if any, as a condition for a trademark
registration.  Please explain the definition  of use and the conditions of maintenance of a registration
in that respect.
Brazil adopts the first-to-file rule and the only possible exception would be a prior use in
good faith of an identical or similar mark for at least six months, in Brazil, before the application isfiled by a third person.  In this case, the prior user shall have precedence to the registration.
Titleholders are supposed to start effective use in Brazil within five years from registration of
the mark and cannot interrupt its use for more than five consecutive years without legitimate reasons,
under the risk of forfeiture if required by a third party.
13. Please confirm whether or not your legislation permits that the registration of trademarks be
indefinitely renewable.
Yes.
14. Please describe the special requirements, if any, prescribed by your legislation concerning
the use of a trademark.
There are no special requirements concerning the use as such.  Nevertheless, in order to prove
the use of a trademark, the titleholder must present legal documents regarding the sale of the product
of the rendering of the service (including import permits or equivalents), which may be complementedby any other evidence of use, such as, but not limited to, advertisements, company papers showing the
mark, etc.
                                                     
1 Although the Industrial Property Law adopts the term "sinal" (signal) and not "signo" (sign), we chose
to use the English term "sign" because this is the te rm used in the original English version of the TRIPS
Agreement, by the accepted Brazilian translation and because this is how it was referred to in the questions.IP/C/W/303/Add.1
Page 4
D. GEOGRAPHICAL INDICATIONS
15. Please explain whether or not your trademark registration authority refuses a trademark
application if it contains a geographical indication.
Please see Article 124, IX and X of Law No. 9.279 of 1996.
16. Please give the definition of a geographical indication in your legislation.
Please see Articles 176 up to 180 of Law No. 9.279 of 1996.
17. Please describe and explain the provisions of your legislation establishing a link, if any,
between the characteristics of an indication and its geographical origin.
Please see Article 178 of Law No.  9.279 of 1996.
18. Please describe how additional protection is granted by your legislation to wines and spirits.
Please mention other types of products, if any, covered by this additional protection.
The additional protection established by the TRIPS Agreement is given to all geographical
indications, whether or not they are related to wines and spirits.
19. Please explain how exceptions under Article 24 of the TRIPS Agreement are used in your
jurisdiction.  Please provide examples of the use of the exceptions by courts or lists of namesconsidered as generic in your jurisdiction.
Since the Law No. 9.279 of 1996 has established new definitions and concepts concerning
geographical indications, there is no knowledge of judicial decisions that applied the exceptions under
Article 24 of the TRIPS Agreement.
E. INDUSTRIAL DESIGNS
20. Please explain whether or not your legislation extends to the protection of designs dictated
essentially by technical or functional considerations.  Please explain how textile designs are
protected.
No.  Textile designs are protected when presented in a visually perceptible plastic form.
21. Please explain how your legislation protects right holders of a design against importing of
articles bearing embodied or copied design.
Please see Article 188 and Articles 207 up to 210 of Law No. 9.279 of 1996.
22. Please state whether or not your legislation provides for the right to issue a compulsory
licence for industrial designs
There is no compulsory licence for industrial designs.
23. Please indicate for what period of time your  legislation grants protection for industrial
designs.
Please see Article 108 of Law No.9.279 of 1996.IP/C/W/303/Add.1
Page 5
F. PATENTS
24. Please describe how your legislation defines the notions of: novelty, inventiveness and
industrial application.
Please see Article 11, 13, and 15 of Law No. 9.279 of 1996.
25. Please explain whether or not in your legislation, patent or otherwise, patent rights are
enjoyed without any exclusions.  If exclusions are provided for, please describe in detail how these
exclusions are applied in legal as well as practical terms.
The only possible ones are those allowed by the TRIPS Agreement.
26. Please explain whether your legislation provides for the exclusion of inventions from
patentability based on ordre public or morality.  If so, please explain the relevant section of your
legislation and explain its formulation.  Please also explain if it has been applied in practice.
Yes.  Please see Article 18 of Law No. 9.279 of  1996.  Up to now, there is no case of patent
application that has been considered to transgress order public of morality.
27. Please explain whether or not diagnostic, th erapeutic and surgical methods are excluded
from patentability in your legislation. If so, please explain the relevant section of your legislation and
explain its formulation.
Yes.  Please see Article 10, VIII, of Law No. 9.279 of 1996.
28. Please explain whether or not plants, animals and essentially biological processes are
excluded from patentability in your legislation. If so, please explain the relevant section of your
legislation and explain its formulation.
Yes.  In accordance to the provisions established by Article 10, IX, of Law No. 9.279, of
1996.
29. Please describe how micro-organisms, non-essentially biological processes, microbiological
processes and plant varieties are protected in your legislation. Please explain, in this respect, the
relevant sections of your legislation.
Concerning micro-organisms, non-essentially biological processes, microbiological processes
and plant varieties, please see Article 18, III, of Law No. 9.279 of 1996.  Plant varieties are protected
by Law No. 9.456 of 1997.
30. Please explain how your legislation protects patent right holders against the importing and
against the offering for sale of a patented invention.
Please see Articles 42 and 184, II, of Law No. 9.279 of 1996.
31. Please state if your legislation provides for patent product protection of pharmaceutical and
agricultural chemical products.  In the affirmative, please indicate the legal reference.
Please see answer to question 25.
32. Please clarify if the patent protection of a process, as provided for in your legislation, covers
the product obtained directly by that process.IP/C/W/303/Add.1
Page 6
Yes.  Please see Article 42 of Law No. 9.279 of 1996.
33. Please explain the additional conditions, if any, in your legislation other than the sufficient
disclosure of the invention in Article 29 of the TR IPS Agreement (e.g. submission of justification for
access to genetic material or prior inform consent to its use).  If such additional conditions exist,
please point out the relevant legislations and describe the additional conditions in detail.
[Response not received]
34. Please describe if your legislation provides for limited exceptions to the exclusive rights
conferred by a patent.  If affirmative, please make a reference to relevant legislation.
Yes.  Please see Articles 43 up to 45 of Law No. 9.279 of 1996.
35. Please explain whether or not your legislation provides for compulsory licensing. If so, please
explain in detail the conditions under which a compulsory licence may be granted.  In particular,
please explain how your national le gislation considers individual merits in the authorization of such
use.
[Response not received]
36. Please explain how your legislation explicitly ensures that a proposed user has made efforts
to obtain authorization from the right holder on reasonable commercial terms and conditions and that
such efforts have not been successful within a reasonable period of time. In this context, how do you
define "reasonable period of time".  Please also explain how your legislation ensures that the use of a
compulsory licence shall be authorised predominantly for the supply to the domestic market of the
Member authorizing such use.
In the Brazilian legislation, there is no definition of "reasonable period of time".  Therefore, it
is to be decided in a case by case basis.  Usually, in other national legislation, it is also to be decided
in a case by case basis.
Concerning the second part of the question, please refer to answer to question 35.
37. Please state if your legislation grants additional protection for innovations after the 20 years
of patent protection has lapsed.
Yes.  Please see Article 40, sole paragraph, of Law No. 9.279 of 1996.
38. Please explain how your legislation provides for the enhanced patent protection of patents or
patent applications pending on 1 January 1995.
Please see Articles 229 and 229-B of Law N o.9.279 of 1996, pursuant to the modifications
made by Law No. 10.196 of 2001.
39. Please explain how your legislation provides for the reversal of the burden of proof in
relation to process patents.
Please see Article 42, paragraph 2, of Law No. 9.279 of 1996.
G. LAYOUT -DESIGNS (TOPOGRAPHIES ) OF INTEGRATED CIRCUITS
40. Please describe how your legislation protects Topographies.IP/C/W/303/Add.1
Page 7
Unfair competition provisions may be applied.  Besides that, it is to be said that there is a bill
on this subject in Congress.
41. Please explain what protection your national legislation grants to right holders against the
unlawful importation, sale or distribution for commercial purposes of topographies including
integrated circuits or other articles in which a topography is incorporated in accordance withArticle 36 of the TRIPS Agreement.
Please see answer to question 40.
42. Please explain how your legislation provides for the derogation from Article 36 of the TRIPS
Agreement as specified in Article 37 of the TRIPS Agreement where a person has no knowledge or
reasonable grounds to know when acquiring an integrated circuit or an article incorporating such anintegrated circuit that it contains an unlawful topography.
Please see answer to question 40.
43. Please state the term of protection granted by your legislation to topographies.
Please see answer to question 40.
H. UNDISCLOSED INFORMATION
44. Please explain whether or not your legislation grants a defined period of time for the
protection of undisclosed information. If so, please give the time span.
The period of time is not defined.
45. Please explain how your legislation defines "undisclosed information".
There is no legal definition.
46. Please explain how your legislation defines da ta submitted to governments or governmental
agencies.
There is no legal definition.
I. ENFORCEMENT
47. Please describe how your legislation provides for effective action against infringement of
intellectual property rights.
The Brazilian legislation foresees effective action against infringement of intellectual property
rights as by applicable special and general laws.  Therefore, the following are examples of the
provisions concerning the question:
a) Articles 183 up to 210 of Law No. 9.279 of 1996;
b) Article 37 of Law No. 9.456 of 1997;
c) Articles 102 up to 110 of Law No. 9.610 of 1998;
d) Articles 12 up to 14 of Law No. 9.609 of 1998;IP/C/W/303/Add.1
Page 8
e) Articles 184 up to 186 of the Penal Code, as well as its general part, covered by
Articles 1 up to 120;
f) Articles 394 up to 405, 498 up to 502, 524 up to 530, and 593 up to 603 of the Penal
Process Code;
g) Articles 159 up to 179, and Articles 1056 up to 1061 of the Civil Code;
h) Articles 129, 131, 591, 798, 813, 822, 839, 844, 846, 867 up to 873, 888, I of the
Civil Process Code.
48. Please explain whether or not your legislation provides for a mechanism to appeal to judicial
bodies of final administrative decisions.
The Federal Constitution establishes, in its Article 5, XXXV, that "the law shall not exclude
any injury or threat to a right from the consideration of the Judicial Power", so that all administrative
decisions may be judicially argued.
49. Please describe how your legislation authorizes judges to order production of evidence by the
opposing party.  Please give precise information on what measures are taken to ensure the protection
of confidential information.
The Brazilian judicial system establishes that the burden of proof is on the one who alleges,
except in the case of an omissive proof, case in which there will be a reversal of the burden of proof.
Nevertheless, the judge may order the production of proofs of facts that are important to solve the
judicial case (Article 155 of the Civil Process Code).  There is the possibility of the proceedings being
held in camera  (Article 155 of the Civil Process Code, Article 206 of Law No. 9.279 of 1996, and
Article 14, paragraph 4, of Law No. 9.609 of 1998).
50. Please quote provisions of your legislati on that authorize judges to order a defendant to
desist from an infringement.
Please see Article 209, paragraph 1, of Law No. 9.279 of 1996, and Articles 213, 813 up to
881, 275, I, and 276 up to 281 of the Civil Process Code.
51. Please quote what provisions of your legislation authorize judges to order the payment to the
right holder of adequate damages to compensate the injury he suffered.
The Civil Code establishes, in its Article 159, that the one who by action or voluntary
nonfeasance violates a right or causes prejudice to somebody else will be obliged to compensate the
damage.
Besides that, Article 204, 208, 209 and 210 of Law No. 9.279 of 1996, Article 37 of Law
No. 9.456 of 1997, Article 14, paragraph 5, of Law No. 9.609 of 1998, and Articles 102, 103, 105,107, 108 and 109 of Law No. 9.610 of 1998 are supplementary to the provisions concerning
compensation of the suffered damage.
52. Please quote what provisions of your legislation authorize judges to order the payment of the
right holder's expenses by the infringer.
Please see Article 20 of the Civil Process Code.
53. Please explain if and how judges have the authority to order that infringing goods are placed
outside channels of commerce or destroyed.IP/C/W/303/Add.1
Page 9
Yes, by means of a judicial writ.
54. Please quote what provisions of your legislation authorize judges to indemnify a defendant in
the event of abuse by the plaintiff.
In the event of abuse by the plaintiff, the judicial authority may sentence the bad faith litigant
to compensate the damages (Articles 16, 17, 18, and 35 of the Civil Process Code).
Please see also Article 259 of the Civil Code, Article 204 of Law No. 9.279 of 1996, and
Article 14, paragraph 5, of Law No. 9.609 of 1998.
55. Please explain how your legislation impl ements Article 50 of the TRIPS Agreement.
Please see Articles 1 up to 120, and Articles 184 up to 186 of the Penal Code, Articles 183 up
to 194 of Law No. 9.279 of 1996 and Articles 12 up to 14 of Law No. 9.609 of 1998.
56. Please identify the competent authorities in your jurisdiction who receive requests from right
holders for an application to suspend the release of counterfeit goods by the customs authorities.
The ultimate competent authority to suspend the release of goods submitted to import or
export procedure is the Judicial Power.  There is also a possibility to the customs authority, as
established by Article 198 of Law No. 9.279 of 1996.
57. Please indicate whether or not procedures are available to suspend the exporting of
counterfeit goods.
The export of counterfeit goods is not regulated under the TRIPS Agreement so, in that sense,
it is a subject-matter that is fought in conformity to internal rules applied to goods in general.
58. Please quote what provisions of your legislation authorize the competent authorities to order
the destruction or disposal of infringing goods.
The Presidential Decree No. 91.030 of 1985, Customs Regulation, in its Article 514, VIII,
establishes that goods, in specific situations, may be arrested to future destruction or other legal
destination.  Besides that, please see also Article 202, II of Law No. 9.279 of 1996 and Article 106 of
Law No. 9.610 of 1998.
59. Please indicate whether or not your legislation provides for a de minimis imports exception.
Yes, there is a regulation for a de minimis  import established by Presidential Decree
No. 91.030 of 1985, Customs Regulation, in its Article 228 up to 231 combined with the Ministerial
Ordinance No. 39 of 1995 from the Ministry of Finance related to luggage.
60. Please explain how your legislation impl ements Article 61 of the TRIPS Agreement.
Please see Articles 183 up to 194 of Law No. 9.279 of 1996, Articles 12 up to 14 of Law
No. 9.609 of 1998, Articles 1 up to 120 and Articles 184 up to 186 of the Penal Code, andArticles 394 up to 405, 498 up to 502, 524 up to 530 and 593 up to 603 of the Penal Process Code.IP/C/W/303/Add.1
Page 10
JAPAN
A. COPYRIGHT AND RELATED RIGHTS
1. Please explain exceptions or exemptions of the National Treatment and Most-Favoured-
Nation Treatment under Law No. 9.610 of February 19, 1998, if any, as permitted in Articles 3 and 4of the TRIPS Agreement.
Brazil makes use of the exception foreseen by Article 3.1 of the TRIPS Agreement.
B. PATENTS
2. (1) Please describe how Law No. 9.279 of 14 May, 1996 defines the notion of
"invention," in the light of Article 27.1 of the TRIPS Agreement stipulating that patents shall be
available for any "inventions" in all fields of technology, provided that they are new, involve an
inventive step and are capable of industrial application. What is the reasoning that the subject
matters prescribed in Article 10(IX) are deemed non-inventions; is it because they exist in nature orbecause they are related to living thing or biological material?
Please see Article 8 of Law No. 9.279 of 1996.  Concerning Article 10, IX of Law No. 9.279,
it is because they are not considered new since they already exist in nature.
(2) If a living thing, its part or biological material that has no previously recognized
existence has been first isolated or purified artificially from its surroundings in nature (i.e., if it
involves "human intervention"), is it deemed an invention under Article 10(IX) of Law No. 9.279?
Otherwise, is it automatically deemed a non-inventio n regardless of the extent of human intervention
involved?
No.  Please refer to the previous question.  However, it is to be said that the related process
may be patentable, if the requirements established by Article 8 of Law No. 9.279 are satisfied.
(3) Where a particular type of chemical substance exists in nature but is neither a part or
whole of living thing nor a biological material (such as carbon beads isolated from the oil residue
which is produced through the oil refinement process when lamp oil and light oil are removed fromcrude oil), is it deemed an invention under Article 10 of Law No. 9.279 if it is first isolated or purified
artificially from its surroundings?
No.
3. Please explain whether or not the below-listed subject matters are deemed inventions under
Article 10(IX) of Law No. 9.279. If any of those subject matters is deemed a non-invention, please
specify the reason. Please suppose that (a), (h), (i), (l), (m), (n), and (o) have been no previously
recognized existences and have been first isolated or purified artificially from their surroundings in
nature, and that all of those listed meet other requirements for patenting, such as novelty (in the sense
that they have not been known to the public), an inventive step, and industrial applicability.
(a) Human insulin isolated or purified from beta cells of a human pancreas
(b) A gene which encodes the said human insulin
(c) An expression vector which carries the said gene
(d) Escherichia coli transformed by the said expression vector
(e) A process for producing human insulin by culturing the said Escherichia coli
(f) Recombinant human insulin obtained by the said process
(g) A mutant obtained by genetically modifying the said recombinant human insulin
(h) Baker's yeast isolated or purified artificially from its surroundings in natureIP/C/W/303/Add.1
Page 11
(i) A microorganism which is isolated or purified artificially from its surroundings in
nature and produces an antibiotic mycin X
(j) An antibiotic mycin X produced by the said microorganism
(k) A mutant obtained by artificially mutating the said microorganism with UV ray
(l) A hybridoma which produces an antibody recognizing antigen A
(m) Human hepatocyte Y
(n) Human liver tissue Z
(o) Carbon beads isolated from the oil residue which is produced through the oil
refinement process when lamp oil and light oil are removed from crude oil
No, referring to items (a), (b), (h), (i), (j), (m) and (n) because they are not new, to item (o)
because it is a discovery, and to item (k) because it is not subject to industrial application (non-
repetitive).
Yes, concerning items (c), (d), (e), (f), (g) a nd (l) provided that the requirements established
by Article 8 of Law No. 9.279 of 1996 are established.
4. Articles 10(IX) and 18(III) of Law No. 9.279 appear not to permit the grant of patents for
"microorganisms" found in nature even if they are new, invole inventive step and are capable ofindustrial applications.  Please explain how Articles 10(IX) and 18(III) of Law No. 9.279 comply with
Articles 27.1 and 27.3(b) of the TRIPS Agreement.
Article 10, IX of Law No. 9.279 of 1996 is related to subject matters found in nature and
Article 18, III of the same Law allows the patentability of transformed microorganisms.
5. Please explain the additional conditions, if any in your legislation, other than the sufficient
disclosure of the invention provided in Article 29.1 of the TRIPS Agreement (e.g. submission of a copy
of the contract for access to biological material or a copy of the documents certifying theauthorization to use traditional knowledge).  If such an additional condition exists, please point out
the relevant provisions and describe the additional condition.
In the Brazilian legal system, the granting of a property right may be put in question if the
means used to create or to obtain the subject-matter of the referred right are done in an illegal manner.
6. Article 18(II) of Law No. 9.279 stipulates that substances, materials, mixtures, elements or
products of any kind, as well as the modification of their physical-chemical properties and the
respective processes for obtainment or modification, when resulting from the transformation of theatomic nucleus, are not patentable.  Please explain how Article 18(II) complies with Article 27 of the
TRIPS Agreement.
Please see Articles 27.2 and 73 of the TRIPS Agreement.IP/C/W/303/Add.1
Page 12
UNITED STATES
A. GENERAL
1. With respect to each form of intellectual property covered by Part II of the TRIPS Agreement,
including plant variety protection, please explain the manner in which the laws of Brazil ensure that
nationals of other WTO Members receive national treatment and most-favoured-nation treatment asrequired by Articles 3 and 4 of the TRIPS Agreement.  Please cite to the relevant provisions of law.
In Brazil, national treatment and most-favoured-nation treatment, as required by Articles 3
and 4 of the TIRPS Agreement, are ensured by Legislative Decree No. 30 of 15 December 1994,
which approved the Uruguay Round Agreements, and by Presidential Decree No. 1,355 of 30
December 1994, which sanctioned Legislative Decree No. 30 and therefore incorporated into Brazil's
legislation all the provisions of the TRIPS Agreement.
B. COPYRIGHT AND RELATED RIGHTS
2. Please describe in detail the operation of the Brazilian sui generis database protection law
that was recently enacted.
No law has recently been enacted on this subject.
3. Please explain how the copyright law of Brazil protects computer programs as literary works
and complications of data as required by Article 10 of the TRIPS Agreement.
Article 2 of the Brazilian Law on Software (Law No. 9.609 of 1998) states that the protection
of computer programs is the same conferred to literary works, pursuant to the Copyright and
Neighbouring Rights Law (Law No. 9.610 of 1998).  Regarding data compilations, the protection
under Brazilian law is defined by Chapter VII of the Law on Copyright and Neighbouring Rights, in
conformity with the requirements of Article 10 of the TRIPS Agreement.
4. Article 11 of the TRIPS Agreement requires that rental rights for computer programs and
cinematographic works be available.  Please cite to the corresponding provision of the copyright law
of Brazil.
Please see Article 2, paragraph 5, of Law N o. 9.609 of 1998, and Article 5, IV, of Law
No. 9.610 of 1998.
5. Please state the length and terms of protection the copyright law of Brazil provides for a work
other than a photographic work or a work of applied art and cite to the relevant provision of law.
Please see Article 7, caput, Articles 41 up to 44, and Article 96 of Law No. 9.610 of 1998.
6. Please describe the protection the copyright law of Brazil provides for performers, and the
term of the protection.
The protection provided by the Brazilian Copyright Law (Law No. 9.610 of 1998) for
performers is described in Title V, Chapter II.  The term of protection is defined by Article 96 of this
Law, and is of 70 years, counted from 1st January of the year following the execution or public
presentation.
7. Article 14.2 of the TRIPS Agreement provides th at producers of phonograms are to enjoy the
right to authorize or prohibit the direct or indirect reproduction of their phonograms.  Article 14.2
requires that producers of phonograms are to have the right to authorize or prohibit the commercialIP/C/W/303/Add.1
Page 13
rental to the public of originals or copies of th eir phonograms.  Please describe how the copyright
law of Brazil implements these obligations  and indicate the term of protection.
Please see Articles 93 and 96 of Law No. 9.610 of 1998.
C. TRADEMARKS2
8. Please indicate whether all of the subject matter that is described under Article 15.1 of the
TRIPS Agreement is protected under the Brazilian trademark law.  Please explain in detail anyconditions that are imposed upon the protection of any signs or combinations of signs under the
Brazilian law, citing any relevant laws, regulations or judicial decisions.
The Brazilian Industrial Property Law (No. 9.279 of 1996) establishes in its Article 122 that
any visually perceptible sign, distinctive in relation to the product or service to which it is applied, is
eligible for registration as a mark.  This Law foresees protection for product, service, certification and
collective marks.
9. Please describe the criteria that are used to determine whether a trademark or service mark
is well known, citing to the relevant provisions of law and regulations.
Please see Article 126 of Law 9.279 of 1996.
10. Please explain how the Brazilian law provides for the protection of well-known marks for
dissimilar products, as required by Article 16.3 of the TRIPS Agreement.  Please cite to the relevant
provisions of the laws and regulations.
Please see Article 160, I, of the Civil Code combined with Article 122 of Law No. 9.279 of
1996.
11. Please explain whether Brazilian law permits the registration of generic terms, which are in
the English or Portuguese language, citing any relevant laws or regulations.
According to Law 9.279 of 1996, Article 124, VI, signs of a generic nature, when related to
the product or service to be distinguished, shall not be registrable as marks, unless they are presented
in a sufficiently distinctive manner.
It is also to be said that it is not foreseen the possibility of a sign acquiring distinctive
character through use.
D. PATENTS
12. Article 27.1 of the TRIPS Agreement requires that, with specified exceptions, patents be
available for any inventions, whether products or processes, in all fields of technology, if they are
new, involve an inventive step and are capable of industrial application.  Please explain in detail how
Article 10 of the Brazilian Industrial Property Law 9.279 of 1996, which makes computer programs
unpatentable, is consistent with Article 27.
The correct provision of the TRIPS Agreement to be addressed in this question is not
Article 27, but rather Article 10, which states that co mputer programs "shall be protected as literary
works under the Berne Convention (1971)".  This is the case in the Brazilian legislation.  Article 2 of
                                                     
2 Although the Industrial Property Law adopts the term "sinal" (signal) and not "signo" (sign), we chose
to use the English term "sign" because this is the te rm used in the original English version of the TRIPS
Agreement, by the accepted Brazilian translation and because this is how it was referred to in the questions.IP/C/W/303/Add.1
Page 14
Law No. 9.609 of 1998 ("Software Law") states that  computer programs are protected as literary
works, as required by the TRIPS Agreement.
13. Article 27.3 of the TRIPS Agreement allows Members to except from patentability, plants and
animals other than microorganisms.  It is not cl ear from Article 10 of the Brazilian Industrial
Property Law of 1996 whether microorganisms are patentable.  Please explain whether and under
what circumstances such microorganisms are patentable in Brazil.
Article 10, IX, of Law No. 9.279 of 1996, refers to subject matters found in nature and
Article 18, III, of the same la w, allows the patentability of transformed microorganisms.
14. Please explain whether Article 10 IX of the Brazilian patent law of 1996, which excludes from
patentability all or part of natural human beings and biological materials found in nature, even if
isolated therefrom, would exclude from patentability  a drug that was isolated from a plant, purified
and determined to be biologically active.
Article 10, IX, of Law No. 9.279 of 1996, refers to subject matters that are not considered
new since they already exist in nature.  However, it is to be said that the related process may be
patentable, if the requirements established by Article 8 of Law No. 9.279 of 1996 are satisfied.
15. Please explain in detail how each of the items indicated in Article 18 is consistent with
Article 27 of the TRIPS Agreement.
Article 18 is based upon Articles 8, 27.2, 27.3(b) and 73 of the TRIPS Agreement.
16. Article 11 provides that an invention is not considered to be new if it became accessible to the
public prior to the filing date of the patent application by means of a written or oral description, by
use or by other means.  Please describe in detail the evidence that is required by the Brazilian Patent
Office to establish a bar to patentability based on oral  prior art.  Please also describe in detail what
may be considered other means under the Brazilian law.
The oral description may be accepted, on a case-by-case basis, provided that it consists in a
legally acceptable proof.  The same principle is valid to the "other means" mentioned in the question.
17. Our translation of Article 16 states that an invention or utility model is not considered
susceptible of industrial application when they can be used in any kind of industry.  Please indicate
whether this is an accurate translation of the Brazilian law.  If this translation is accurate, pleaseexplain in detail what is meant by produced in any kind of industry.  If this translation is not accurate,
please provide an accurate translation.
The Article in which the questions refers to shall be 15, and not 16, and its translation should
be, having in mind that national tongues may have differences in the meaning of words that are
translated:
"Article 15.  An invention and a utility model are considered susceptible of industrial
application when they can be used or produced in any kind of industry."
18. Article 34 requires that documents necessary to regularize the processing and examination of
the application be submitted within 60 days of the Br azilian Patent Office’s request to avoid dismissal
of the application.  Please describe in detail what is meant by documents necessary to regularize the
processing and examination of the application.
Those ones established by Law No. 9.279 of 1996 and by the PCT rules.IP/C/W/303/Add.1
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19. Article 40 provides that a patent term is twenty  years from the date of filing.  Please confirm
that this term applies to patents that issued before the effective date of Law 9.279, as required by
Article 70.2 of the TRIPS Agreement.
Due to peculiarities of the Brazilian legal system, this subject is being considered by the
Executive Power as well as, on a case-by-case basis, by the Judicial Power.
20. Articles 60 and 62 provide that entries made by INPI related to assignments, limitations on
the application or patent, or changes in the name, headquarter or address of the applicant shall
become effective with regard to third parties beginning on the date of their publication.  Please
indicate the average period of time between the filing of an assignment, or other entry, and its
publication.
Nowadays, the average time is four months.
21. Please explain in detail how the exemptions from liability provided for in Article 43 of the
Brazilian law are consistent with Article 30 of the TRIPS Agreement.
Please better clarify what are the reasons that motivate you to the formulation of the question,
considering that nothing exists, explicitly or implicitly, in relation to legal provision that seems to
allow doubts concerning the compliance with Article 30 of the TRIPS Agreement.
22. Articles 58-60 of the Brazilian patent law provide for the assignment of patent applications
and the recording of assignments.  Please indicate the average time period between the date that anassignment is filed and the date that it is published.
Nowadays, the average time is four months.
E. PROTECTION OF UNDISCLOSED INFORMATION
23. Please describe in detail how the Brazilian law provides for the protection of undisclosed
information that is secret as defined in Article 39.2 of the TRIPS Agreement and provide citations to
the relevant provisions of law.
Please see Article 195, XI and XII, of Law No. 9.279 of 1996, and Article 154 of the Penal
Code.
24. Please describe in detail the manner in which protection is provided for test data regarding
pharmaceutical and agricultural chemical products, which is submitted to the government in order to
obtain marketing approval in Brazil, and cite to the relevant provisions of law.
Please see Article 195, XIV, of Law No. 9.279 of 1996.
25. Please explain whether applicants for marketing approval are permitted to rely on data
submitted by an earlier applicant.  If so, how long a period of exclusivity is given the earlier applicant
before such reliance by others becomes possible.
The general rule is that it is not allowed, as established by Article 195, XIV, of Law
No. 9.279 of 1996.IP/C/W/303/Add.1
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F. ENFORCEMENT
26. Please describe the procedure for the prompt notification of the importer and the applicant of
the suspension of the release of goods under Article 54 of the TRIPS Agreement, citing any relevant
laws and regulations.
The notification of the importer and the applicant of the suspension of the customs release is
judicially done by means of the official gazette which makes public the decisions.
27. Please provide statistical information related to civil copyright, trademark, geographical
indication, industrial design, patent, integrated circuit layout-design, and trade secret enforcement
for the year 2000, including the number of cases file d; injunctions issued; infringing products seized;
infringing equipment seized; cases resolved (i ncluding settlement); and the amount of damages
awarded.
At the moment, there is no statistical data available.
28. Please provide statistical information related to criminal enforcement in the area of copyright
piracy and trademark infringement for the year 2000, including the number of raids, prosecutions,
convictions, and the amount of fines and/or jail terms (including whether the fines were paid and
whether the jail term was actually served or was suspended) and any other information establishing
that the criminal system operates effectively to deter copyright piracy and trademark counterfeiting.
At the moment, there is no statistical data available.
29. Please provide the average time that it takes in Brazil for the authorities to investigate a
reported copyright violation and for a prosecutor to  file a criminal copyright case.  Also, please
provide the average time that is required to complete a criminal prosecution of a copyright case and
to complete a civil copyright case on appeal.
The Brazilian judicial system is variable as for the period of time of investigation.  The
variation depends on the place where the crime occurs, on the amount concerning the case, and other
factors that determine whether the judicial proceedings will have a faster celerity or not.
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