NEW PTO FORMALITIES FOR THE FILING OF PATENT APPLICATIONS

On October 5, 2009 PTO Resolution No. 210 will come into force. This rule regulates the procedures to present "Sequence Listing" with the objective of complementing the specification of patent applications filed at the PTO, as well as representation of the nucleic and amino acid sequences in the "Sequence Listing" and revokes item 16.3 of the Normative Act No. 127, of the 5th March, 1997. From this date on the "Sequence Listing" should be presented to the PTO, as an instrument to complement the specification, in an electronic file format, in non-recordable CD or on a non-recordable DVD.

The "Sequence Listing" in the electronic file format should be presented to the PTO when the patent application is filed, or at the latest, on the date for the request for examination, as foreseen by Article 33 of the Patent Law, independently of notification or office action on the part of the PTO, by means of a petition exempt of any official fee, together with an express declaration by the applicant that the information contained in the electronic format is identical to that which is presented on paper in the patent application. In these cases, the Letters Patent will also consist of a CD or DVD containing the files of the "Sequence Listing" in TXT and PDF formats and the file with the alphanumeric control code of the file of the "Sequence Listing" presented in TXT format.

NON-TRADITIONAL TRADEMARKS

Among the visually perceptible distinctive signs which can be registered as trademarks, we stress that the Brazilian PTO has granted a few registrations on trademarks which are considered "non-traditional", particularly holograms (photographical plate or film where the device obtained through holography is affixed, the image of which changes depending on the observation angle), which have been registered as composite trademarks; motion and multimedia signs, which have been registered as device trademarks that represent the views of the movement; gestural trademarks (composed of gestures), which have been registered as device trademarks; position trademarks, that is, those which are defined by the position they appear on the product, which have been registered as device trademarks; color trademarks, which have been registered as composite or device trademarks, provided the colors have been combined in a distinctive manner; touch trademarks, which have been registered as device or tridimensional trademarks and which protect the surface of the product; and trade dresses, which have been registered as composite or device trademarks.

In fact, there are few registrations on non-traditional trademarks in Brazil, but there is an increasing tendency to register these types of trademarks, where new technologies play an important role which facilitates their protection.

STREET VENDORS HAVE ALREADY ILLEGALLY STARTED TO SELL MEDICATION FOR SWINE FLU

The question of illegal sale of medicines is common in many countries, bringing to mind old rusty machinery where active elements originate and proceed unknown and different materials are mixed inadvertently without any hygiene or being free of bacteria. It is also a common subject for the police force and health authorities in many countries in an attempt to stop citizens being exposed to obvious malign substances which can cause harm to the human organism. Socio-education is being developed in parallel with the objective of creating awareness among the population of the incalculable risks involved in administering these products, leading in many situations, to death.

Nevertheless, the recent phenomenon of sales of medication by street vendors in Brazil has acquired national repercussion when it comes to the sale of the medication TAMIFLU. Indicated to combat swine flu, this drug and its distribution in Brazil limits the Brazilian Health Authority's ability to control the stock of medicaments with the aim of avoiding scarcity and uncontrolled hiking of prices. The origins of the medication are obviously doubtful and the Civil Police have opened inquiries throughout the country with the aim of stopping this practice as soon as possible.

THE LICENSING OF CHARACTERS AND TRADEMARKS GROWS IN THE CRISIS

According to information from ABRAL - The Brazilian Licensing Association, the licensing of characters protected by copyrights, as well as trademarks has increased during the economic crisis. The licensing of characters and trademarks are an instrument largely utilized by industry to control their sales and, apparently, to demonstrate a significant and effective tool in a period of acute economic crisis. Licensing has become a recognized power to sell products - notably children's toys - with many enduring characters being reinvigorated and returning to the licensed market with stronger force. According to specialists, old characters, such as Felix the Cat, Little Lulu, Snoopy, and even Garfield, still have the ability to bring parents and children together with the same product. In Brazil the licensing of copyright is formalized with relative ease and the resultant contract, even including royalty remittance abroad can be affected even without recordal at the PTO. As an additional advantage, when the payment of royalties is made directly to the creator/holder of copyrights, the remittances are exempt from paying the tax CIDE.

MEMBERS OF MUSICAL GROUP ARE INDEMNIFIED FOR WRONGFUL USE OF IMAGES AND COPYRIGHT INFRINGEMENT

Members of the musical group J. Quest are to be indemnified by the company Wizard Brasil Livros e Consultoria in the amount of R$ 50 thousand reais (equivalent to approximately US$ 26 thousand dollars) for wrongful use of images, as well as the use of passages from their songs, according to a recent decision of the Minas Gerais State Court.

The fundamental basis of the case is that in 2007 a contract was executed between the parties, which was valid until May 2008, and was the subject of assignment of rights. Nevertheless, the group was able to prove that Wizard Brasil Livros e Consultoria used their images after the contract had terminated.

The company replied by stating that the use was foreseen in the contract, but the Minas Gerais State Court did not accept the argument. The decision was handed down in the first instance and is still not final as an appeal still lies to the State's Court of Appeals.

THE POSTING OF VIDEOS ON THE INTERNET AND COPYRIGHT ISSUES

We have not yet seen, in Brazil, on any great scale, the reaction of copyright holders of audiovisual works, against the unauthorized use of them on Internet sites. There is no legislation in Brazil sufficiently modern to govern this matter, as there is in other countries - such as the Millennium Act in the United States - the current Copyright Law in Brazil, in the view of specialists in this area, possesses provisions which sufficiently cover this practice in Brazil. However, the copyright holders of audiovisual works in Brazil appear to have adopted the practice of not filing judicial measures in defense of their rights. However, we must not forget that at any moment, a movement of copyright holders of audiovisual works against the practice of unauthorized disclosure on the Internet could suddenly arise in the form of judicial measures. We therefore recommend that the operators of the offending Internet sites which offer such services increase the precautions they take and institute practices to dissuade the posting of such videos on their sites, and furthermore, that they reserve the ability to monitor the content of the videos and withdraw those which infringe copyright. In the meantime, we await a change in the legislation that would bring more modern measures to regulate the relation between the holders and user of copyright in Brazil..

THE PTO EFFORTS TO SPREAD KNOWLEDGE OF INTELLECTUAL PROPERTY IN THE COUNTRY

During the month of August three actions by the PTO to spread intellectual property awareness in Brazil was the main point of news highlighted in the national media, including the Masters Degree in Intellectual Property and Innovation, the II Academic meeting of Intellectual Property, Innovation and Development, as well as the Technical Cooperation agreement signed by the Secretary of Science and Technology and Marine Innovation. The first two measures aim at stimulating interest among the public in general in the area of Intellectual Property, with attendance being free. The latest public awareness initiative has already reached the area of Excellence in Innovation Research and Development at the Technological Innovation Marine Nucleus attending directly to the national interests of production of new technology assisting in the defense of the State.

These efforts demonstrate the social and political engagement of the PTO for Intellectual Property to be really seen as an instrument for national development.