The Floor approved on Tuesday (08) the Provisional Measure 482/10, which makes possible Brazil to impose penalties authorized by the World Trade Organization (OMC) on other countries’ intellectual property rights, when they do not comply with OMC’s rules. MP will be conducted to the Federal Senate, but it loses validity on Friday (11).

The MP was edited in February this year, being approved as a conversion bill of Deputy Fábio Ramalho (PV-MG), and helping in any case of Brazilian victory at OMC at commercial contentions. However, the immediate target was to allow Brazil to apply penalties on the United States, convicted in 2009 by a given subsidy to their cotton producers.

After negotiations between both countries, the Brazilian government postponed, until mid-June, to apply commercial retaliation measures on US goods, such ones being announced in the beginning of this year.

That has occurred after a memorandum signature of agreement for a fund creation on technical assistance and development of cotton activity in Brazil. There will be a deposit of R$ 277 million a year from the North-American resources. The additional tax on 102 North-American goods would have a potential impact in 2010 of R$ 1.1 billion (around US$ 591 million).

Patents
The MP allows Brazil to apply penalties about citizens or companies’ intellectual property rights of the country convicted by OMC.

Penalties can be related to several products, such as literary works, computer programs, invention or integrated circuit design patents. The "crossed retaliation" can happen in the way of suspension or limitation of these rights; temporary block of royalties sending; changes at the procedures to obtain intellectual property registry; or an extra-tax payment on profits from these rights.

OMC agreements are divided into three sectors: goods, services and intellectual property. Crossed retaliation gets this name when OMC authorizes a country to apply penalties on sectors different from those of making the contestation.

In the case of the North-American cotton, for example, the Brazilian claim is related to goods sector, and the Country was given the right to also retaliate at service and intellectual property sectors.

Public Use
Another way provided by the MP to make the crossed retaliation is the licensing or non-commercial public use of intellectual property without the holder’s authorization. That is applied, for example, to medicine patent infringement, used by the government at official health programs.

In this case, patent infringement can or cannot occur with a payment, contrarily to the other cases, in which the retaliated right owner will not receive any kind of remuneration.

Fine for a bank
Ramalho has also included, in the text, a fine prevision for banks that allow resources sending abroad to pay profits with intellectual property rights before tax collection on those profits.

Fine will be of 50% on the tax owed to the Federal Government by the company or person having the payment obligation for the intellectual property right. This tax percentage will be determined by the Exterior Commerce Chamber (Camex), and will be on due values under intellectual property.

Translation-Grupo Solucion-SP Language/Márcia Regina Monteiro