Patent trolls: o abuso do direito como instrumento de controle do uso da patente por entidades não-praticantes

• Autor(a) principal: Guerchon, Dan
• Data de Publicação: 2021
• Outros Autores: [e-mail]
• Tipo de documento: Dissertação
• Idioma: por
• Título da fonte: Biblioteca Digital de Teses e Dissertações da UERJ
• Texto Completo: http://www.bdtd.uerj.br/handle/1/20649
• topic: Patent trolls; Industrial Property rights; Patent; Abuse of right; Direito da Propriedade Industrial; Patente; Abuso do direito; CIENCIAS SOCIAIS APLICADAS::DIREITO::DIREITO PRIVADO::DIREITO CIVIL

The present work aims to explore the entities called patent trolls, pointing out their characteristics and variables, and then proposing a limitation of their activity in Brazil through the institute of abuse of right. The proposal will be divided into three fundamental axes, which will help to clarify the problem. In the first, we seek to bring an overview of patents in Brazil, pointing out their history, theories that justify their existence, their technical requirements and instruments that allow their interaction with third parties. Seeing the inability of the legal rules to deal with the problem, we briefly present some forms of limiting its exercise’s legitimacy (values), namely, the defense of competition, the social function of property and the abuse of right. After this more general incursion, a specific analysis of the phenomenon of patent trolls is carried out. Here, we study their possible names, the traditional business model of these entities and the current difficulties of the theme. Along the same lines, we show some concrete cases in Brazil and in the world, as well as present the main arguments of those who defend and attack those entities. The third and final part of the work is dedicated to investigating how the abuse of right could serve as the most effective instrument to contain the performance of patent trolls in the country. In this sense, we explain the concept of abuse of right in the scope of civil law and industrial property, differentiating it from the defense of competition and the principle of social function. Finally, we attempt to establish a reasonably objective list of parameters for investigating the illegitimate exercise of patent rights in order to provide tools for the identification and inhibition of patent trolls.