1 The Current Role IP Play in Sustainability in Brazil

Intellectual property rights, in short, are a set of rules that aim to protect certain types of intangible assets, with specific and—more traditional—objective of fostering innovation.

However, as a legal rule, considering the role of the right to public policies, Intellectual Property can act as a tool for the development and application of a variety of public policies, such as the development of national industry, foreign trade aspects and competition.Footnote 1

In this context, sustainability—or rather, the promotion of sustainability—is just another public policy that can benefit from the tension between protection and access provided by IP rules.

As an example, greater IP enforcement aimed at “green” technologies can be an important instrument for fostering innovation in this sector (exercising the traditional IP function of fostering innovation).

On the other hand, depending on the objectives of a particular public policy, instead of fostering innovation, it may be much more important to guarantee public, general, and unrestricted access to technologies that are protected by IP. In this scenario, the way IP could contribute to sustainable development is to have its application exempted.

The role of IP, therefore, must be to serve as one (of several) tools for public policies seeking sustainable development.

It will be up to the public agents and the stakeholders to define public policies that promote sustainable development, indicating how the application of intellectual property rules can contribute to such public policies.

Specifically, in Brazil, the relationship between intellectual property and sustainability, in the Federal Constitution and in the Brazilian special legislation, is not clear at first, as it is not direct.

The Brazilian Federal Constitution mentions intellectual property rights in its Article 5, items XXIX (copyrights) and XXIX (industrial property rights), providing them not only with constitutional protection but also with a finalistic feature in relation to the objectives of the Brazilian Republic.

Indeed, at least for industrial property rights and industrial secrets, the Constitution determines that the protection ensured to industrial creations, brands, business names, and other distinctive signs is granted “with a view to the social interest and the technological and economic development of the Country.”

Additionally, every property right, whether material or immaterial, is subject to a social function under item XXIII of the same constitutional Article.

However, in the Brazilian laws that govern intellectual property rights, there are no provisions that explicitly relate them to the achievement of sustainability, understood in the context of the Environment, Social and Governance (ESG) triad.

Although there are undoubtedly provisions in such laws that echo the interest and social function of intellectual property, such as, for example, the possibility of compulsory licensing of patents due to a state of emergency and lack or insufficiency of exploitation, as well as the prohibition of registration, as a trademark, of expressions that go against morals and good customs, and although it is defensible that the protection granted to holders of intellectual property rights, business secrets, and the repression of unfair competition has as a reflex objective the protection of consumers and the social order, the fact is that the current Industrial Property Law still seems to reflect the more traditional concerns on the matter, established since the first Brazilian document on the subject, the Rule of 1809, promulgated by the then Prince Regent D. João VI, of Portugal, Brazil and Algarves, when the Portuguese court was exiled in Rio de Janeiro, driven away by persecutions. Napoleonic ions. The aforementioned Rule had the objective of promoting the progress of industries and commerce, and the only sign of any social concern comes from the proclaimed final objective of the act, which would be the “public happiness of the faithful vassals.”

Undoubtedly, the encouragement of commerce and inventors, on the one hand, and the repression of bad practices in commerce, on the other, lead to the achievement of social objectives. To give one example, we highlight the patenting of new substances for medical use, which can cure, prevent, or at least mitigate the effects of diseases, as well as the patenting of substances and equipment used to increase agricultural productivity and improve conditions population health. Although it can be argued that it is not the granting of the patent, but the invention and its exploitation itself, that achieve sustainability goals, it can be objected to this argument, equally, that without the reward system that is the patent system, there would never be an economic incentive for the realization and dissemination of such inventions.

Nevertheless, Brazilian rules contain more explicit provisions on sustainability.

One of the most obvious examples is the existence of one exclusivity program focused on “green patents,” established by the Brazilian Patent and Trademark Office (BPTO) almost six years ago, through its Resolution n° 175/2016. This PPH, although attracting criticism in the sense that it would be violating the CUP by giving priority treatment to certain inventions based on discrimination of type of industry or invention, has accelerated the examination and granting of several patents related to inventions that reduce, prevent, or mitigate the environmental impact, stimulating research and development in this regard.

Other examples are certification marks and geographical indications, which, however, act in different ways in relation to sustainability.

The certification marks are those used to certify the conformity of a product or service with certain norms or technical specifications, notably in terms of quality, nature, material, and methodology used (Art. 123, II of the Brazilian IP Law—BIPL). Evidently, in addition to the quality and intrinsic safety of products and services, such brands may also be aimed at certifying good environmental, social, and governance practices, stimulating, with the exclusivity and prestige that their registration guarantees, the performance of their holders and helping in building public trust in certification and in certified products and services.

Geographical indications, divided into indications of origin and appellations of origin, are the geographical name of a country, city, region, or locality in its territory, which has become known as a center for the extraction, production, or manufacture of a particular product or provision of a given service (indication of origin) or designating a product or service whose qualities or characteristics are exclusively or essentially due to the geographical environment, including natural and human factors (designation of origin) (Art. 177 of the BIPL).Footnote 2

By ensuring the origin and/or natural and human factors related to certain products and services, geographical indications can not only have a similar effect to good practice certification marks, by designating products and services that adopt “green” processes or that meet certain positive parameters of respect for social rights, but also tend to promote the enrichment of those involved in the production and supply of products and services identified by geographical indications, many of which belong to traditional and impoverished communities, by increasing the perception of value by the consuming public. In this way, it is not uncommon for geographical indications to end up promoting the improvement of conditions in an entire community that is historically poor and poorly served by government policies.

Aside from the rights directly established by the laws that govern intellectual property in Brazil, it is necessary to mention the legal protection granted, in our country, to traditional knowledge associated with biodiversity. This protection is currently made through the requirement of authorization for access to Associated Traditional Knowledge (in Portuguese CTA) for purposes of scientific research, bioprospecting, or technological development, which are very closely related to technological creations subject to patent protection and, eventually, for industrial secrets. Authorization is provided after prior consent of the traditional peoples who hold the knowledge whose access is sought and the Genetic Heritage Management Council (in Portuguese CGEN).Footnote 3 The fees involved, as well as the revenue arising from contracts for the economic exploitation of the product or process originated from the samples, are intended, among others, to provide economic support and improve the living conditions of these populations.

As tools, intellectual property rights are also subject to misuse, either by omission in their exploitation, or by abuse of the rights conferred. Such misuse can certainly have negative impacts on the environment and society, however, currently the legislation does not provide for punishments specifically related to damage to the environment.

The Brazilian Industrial Property Law provides for the penalty of compulsory licensing of patents not only in the event of a national emergency and in the absence or insufficiency of the exploitation of the object of the patent, but also as a punishment for the abuse of the rights conferred by the patent, particularly when they have anti-competitive effects (Article 68 of BIPL). However, to date, there is no known precedent for the application of the compulsory patent license for this reason.

The behavior of patent holders in the exercise of their exclusivity rights has raised the concern of the Brazilian judiciary, in some cases, especially for the maintenance of the monopoly prices that patents allow.

One of the peaks of this concern—whose legitimacy is questioned by most intellectual property lawyers—was the decision handed down by the Federal Supreme Court in the records of the Declaratory Action of Unconstitutionality n°. 5529, which deemed the only mechanism provided by law in Brazil to compensate the holder for excessive delays by the BPTO in the examination of patents unconstitutional (Article 40, sole paragraph of the BIPL). The provision, which was revoked by Law No. 14,195/2021, guaranteed a minimum term of ten years for invention patents and seven years for utility model patents, counting from the grant date. One of the main grounds for the Federal Supreme Court’s decision was the alleged abuse of depositors who would use various expedients to delay the examination and, therefore, obtain patents with a longer term, thus delaying the availability of the object of the patent to the public domain.

2 How This Role Is Pursued

In Brazil, specifically for sustainable technologies, there is the “Green Patents” program (BPTO Resolution No. 175/2016),Footnote 4 which aims to accelerate the examination of patent applications for projects that support the sustainable economy. Its focus are projects that aim to promote less environmental impact, since the BPTO understood that it would be a measure to combat the advance of climate problems, which has been increasing in recent decades.

More broadly, as an instrument to foster innovation in several fields, there is also the so-called “Law of the Good” (Federal Law n° 11.196/05), which grants tax incentives for companies that invest in innovation.

It is worth mentioning that those examples of speeding up the examination or encouraging the filing of patents or other types of IP can be considered, in general, as rules that promote the fostering of innovation.

In relation to IP rules that seek to guarantee access to innovations, except for compulsory licensing, mentioned in a previous answer, there is no other rule in this sense, which could be potentially positive for the promotion of sustainability.

After all, it is not enough for new technologies to be developed (in terms of sustainability or others), but for these technologies to be more accessible to society.

This can be done, for example, as a reduction in the protection of intellectual property rights over sustainable technologies or, what seems like a less extreme solution, through the reduction or exemption of taxes on the use of these sustainable technologies. In Brazil, although there is a debate about this topic, there is still no rule that guarantees this tax benefit.

In fact, the relation of IP and the fostering of sustainability raises a debate which is not restricted to sustainable technologies, but to all intellectual property: the tension between the enforcement (protection) of technology and access to technology, that is, which one promotes greater social well-being.

Apparently, except for pharmaceutical patents, there is still not enough evidence to conclude that greater enforcement promotes the promotion of more technology,Footnote 5 but, on the other hand, there is also no evidence that greater access will bring greater social well-being.

Ideally, public policy that seeks to promote sustainability through IP should plan how to best use the tension between protection and access to technologies, balancing both, and establish metrics for evaluating the corresponding results.

3 How to Improve It

Considering the fundamental role of a tool for public policies, we understand that intellectual property rights in our country do fulfill their role of promoting the development of sustainability.

Indeed, we mentioned practical cases, in our country, of policies which encourage innovation and “green patents” through IP rules.

It is worth noting, however, that IP rules alone are not sufficient to achieve sustainable development and must be applied in the context of broader public policies that have this objective.

Generally, it can be said that the IP registering authority, the BPTO, provides information about registered IP rights that enable assessment of how IP is supporting sustainability in your country, provides a specific procedure and fees, and offers an incentivization scheme for promoting sustainable development.

As explained above, the “green patents” program is a living example of a practice of encouraging technological innovation focused on the environment, widely spread in the country and the data of such program has been disclosed by the BPTO.

Nonetheless, despite the BPTO efforts, other similar programs or policies are welcomed.

The IP enforcement system in Brazil, although it still needs improvement, is quite strong, with a system of judicial protection that guarantees the defense of IP holders, as well as with practices by Customs and by the local police seeking to repress IP infringements and counterfeits.

In any case, we refer to our previous comment on Sect. 14.2 above that there is no evidence that IP enforcement necessarily guarantees the promotion and development of innovations (sustainable or not) to comment that there is no way to confirm whether this enforcement system in Brazil, which is strong and effective, ends up fostering the development of sustainable practices and policies.

Considering the indirect role of IP in relation to the promotion of sustainability—that is, it is not property rights themselves that aim to promote sustainability, but public policies that use IP rights as an instrument to do so—we understand that there is no need to improve intellectual property rights in the country, but rather to improve the debate between government, society, and all stakeholders about the development of sustainable public policies.

In this sense, any changes in patentability conditions/requirements specifically for technologies or other intangible assets that promote sustainability, in principle, could imply discrimination against other technological fields, in violation of Article 27 of the Paris Union Convention.

Furthermore, it seems to us that any changes in the conditions/requirements for patentability are just a way to promote greater access to sustainable technology or foster its protection, which, as seen, can be achieved in other less impactful ways than the alteration of legal requirements already consolidated and that are practically uniform in different legislations.

Likewise, creating new PI types does not seem to be necessary. On the one hand, it seems that the current IP types cover all forms of intangible assets that can contribute to the development of public policies on sustainability.

On the other hand, the effect of creating new types of intellectual property would only constitute another way of promoting greater protection for sustainable technologies, which, as seen, can be achieved by other means, without generating any potential negative impacts resulting from the creation of a new type of IP (such as debates about the scope of protection, protection requirements, overlap with other types of IP, etc.).

Regardless, although we understand that the current IP system does not need to be modified (but the public policies that use it as a tool to promote sustainability), if any local changes do not conflict with provisions of international treaties, such as amendments to conditions/requirements for granting a patent, it is, indeed, possible for such a change to be carried out at the local level.

Again, as we have the opinion that the IP system, locally or internationally, does not need an improvement to promote the sustainable development, there would be no need to modify any international treaty.

It is worth to mention, however, that if the makers of public policies—locally or internationally—intend to provide to green patents a special treatment, in prejudice of patents in other technological fields, it is recommended to have Article 27 of the Paris Union Convention to be amended in this way.

4 Conclusion

Intellectual property rights have the power to function as an efficient and important instrument for promoting sustainability, through incentives for innovation and/or access to technologies, thus contributing to public policies that seek to advance new sustainable technologies or that seek to spread the use of existing technologies.

In Brazil, without prejudice to the need for improvements, this is already happening, either through the very effects of granting an IP right, as with certification marks and geographical indications, but, mainly, through some specific policies of tax benefit to encourage innovation and an accelerated examination program for “green patent” applications.

For this reason, it is believed that the current system of protection of IP rights is already sufficient to contribute to the promotion of sustainable development, making new legislative changes or the creation of new types of IP unnecessary.

As the IP is just a tool, the important thing at this point does not seem to be to change the tool, but what is done with it.

This improvement in the use of IP, in our opinion, will take place through better public policies to promote sustainability, remembering that, as it is an agenda that is important to society, not only public agents and public policymakers, but the whole society, including IP holders, are stakeholders who must contribute to the promotion of sustainable development.