A proteção da propriedade industrial e as suas implicações no direito da concorrência

• Autor(a) principal: Fernandes, Almir Garcia
• Data de Publicação: 2016
• Tipo de documento: Tese
• Idioma: por
• Título da fonte: Biblioteca Digital de Teses e Dissertações da PUC_SP
• Texto Completo: https://tede2.pucsp.br/handle/handle/6984
• topic: Propriedade industrial; Concorrência; Licenças de patentes; Marcas; Industrial property; Competition; Patent licenses; Marks; CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO

This research analyzes both the assets exploitation of Industrial Property as the preservation of competition, considering them as instruments for ensuring economic development. Presents the different perspectives on the exploitation of trademarks and patents by their holders, as well as their relationship with the Competition Law, which appears often as a complementary and sometimes as conflicting, justifying the need for further study on the theme. In fact this is where the problem presented on this research appears as it relies precisely in the search for elements that can solves the conflicts that exist between the Intellectual Property and Competition Law, showing, at the final point, elements for help to understanding their coexistence and compatibility. It is a work marked by a qualitative analysis of obtained information mainly through literature research carried out in Brazilian and foreign law publications in the subjects of Industrial Property and Competition Law, as well as case law, taking into account mainly administrative trials promoted by CADE. The document divided into two parts; the first present historical studies and analyzed the constitutional basis both of Industrial Property as the Competition Law. At the second part, the specificities of licensing agreements for patents and brands analyzed, emphasizing situations involving compulsory contraction. It addresses contractual clauses that can harm competition and several unilateral acts of entrepreneurs who, in the exercise of the right to exploit the assets of Industrial Property, finishes to generating damage for competition. It presented practical examples of cases tried in Brazil, the United States and Europe showing that the exploitation of Intellectual Property have been done improperly, causing damage to the market and concurrent in general. It finally determines, that is not possible to consider any act of exploitation of industrial property as illegal per se, it should be considered the rule of reason in the analysis of practical case study