Propriedade industrial estratégica: desenho de instituições intermediárias para a transição tecnológica

Abstract

This research is presented as a continuation of the study we conducted in 2014, once again highlighting the correlation between industrial property, technological innovation, and economic development. The efficient and strategic regulation of technology transfer in the strict sense ("know-how") seems to be the most assertive way for undeveloped countries to begin an effective technological transition. It makes possible the access to ready technologies, tested and not subject to the risks inherent to primary research and development activities. In this opportunity, we make use of the legal-comparative method, through which we intend to evaluate the technological trajectory of Asian countries that have performed remarkable technological trajectories, reaching the positions of being currently recognized as highly innovative and technological economies. The intention is to identify the existence of a common and fundamental element in these models, which enabled such paths of success. In general, from the 1980s on, we identify the beginning of the technological transition of South Korea, China, Singapore, and Taiwan, and we seek to evaluate the path they followed to achieve: (i) the construction of a satisfactory infrastructure; (ii) the allocation of a satisfactory volume of financial and economic resources in research and development activities; (iii) the development of human capital; and (iv) attraction of the productive sector. It was observed throughout the work that such arrangements make use of the creation of intermediary institutions specifically aimed at the incentive, stimulus, granting of benefits, and attraction/engagement of the productive sector in the acquisition of foreign technology. Once such knowledge is acquired, the State must assume the role of fostering and promoting the assimilation, dissemination, and access to knowledge for national companies, enabling them to later become perfectors and autochthonous producers of new technologies. Even though the normative is changing under way, since its creation, the BPO – Brazilian Patent Office (INPI – Instituto Nacional de Propriedade Industrial) is the only agency that has been endowed with such a purpose in our legal system, without being able to perform this function efficiently. Despite a radical paradigm shift in the BPO’s stance in relation to the aspects contained in the act of registration of technology transfer contracts (with the advent of Normative Instruction No. 70/2017), no change is perceived in the face of the necessary strategic regulation of the subject, which is sufficient and appropriate to the effective promotion of technological innovation and consequent technological transition of the national economy. Besides the comparative aspect, the present work assumes a legal-propositional character, by proposing the strategic use of institutional bypass to execute the necessary arrangement in the Brazilian institutional matrix focused on the regulation of technology transfer. At the end, it seeks to demonstrate the possible effective pursuit of the necessary and already overdue change in the national economic paradigm, with the creation of an intermediary institution specifically endowed with the purpose of strategically regulating technology transfer in the Brazilian legal system, opening an unprecedented alternative path to the blockade caused by the INPI.