“Nulidade”
摘要
Law No. 9.279/96 – the Industrial Property Law – generally requires the National Institute of Industrial Property (INPI), a federal agency, to participate in actions that seek a declaration of invalidity in respect of industrial property rights (trade marks, patents, or industrial designs). Therefore, a court at the federal level (“federal court”) has jurisdiction to hear and determine such claims. However, the same statute contains an express exception, specifically for patents and industrial designs, allowing the defendant to raise invalidity as a defence in infringement actions. In such cases, as the INPI is not a party to the legal proceedings, there is no question of any usurpation of the jurisdiction of a federal court. When the invalidity of patents and industrial designs is recognised by a court at the state level (“state court”) incidentally (that is to say, as an incidental issue), its effects are exclusively inter partes. It may serve only as a basis for dismissing the claims made in the related infringement action. Moreover, as Law No. 9.279/96 expressly authorises the invalidity of patents and industrial designs to be raised as a defence, failure to give effect to that provision would unduly restrict the fundamental right to a full defence, in clear violation of Art. 5(LV) of Brazil’s Constitution.