Chapter II
Patentability

Section 1
Patentable Inventions and Utility Models

Art. 10. The following shall not be considered inventions or utility models:

I. discoveries, scientific theories and mathematical methods;

II. purely abstract concepts;

III. schemes, plans, principles or methods of a commercial, accounting, financial, educational or advertising nature or for games of chance or surveillance;

IV. literary, architectural, artistic and scientific works or any aesthetic creation;

V. computer programs per se;

VI. presentations of information;

VII. rules for games;

VIII. techniques and methods for operations or surgery and methods for therapy and diagnosis practised on the human or animal body;

IX. all or part of natural living beings and biological materials found in nature or isolated therefrom, including the genome or the germ plasm of any natural living being, and any natural biological processes.

Art. 18. The following shall not be patentable:

I. anything contrary to morality, decency or public safety, order and public health;

II. substances, materials, compounds, elements or products of any kind, including the modification of their physical and chemical properties and the processes for obtaining or modifying them, when they result from the transformation of the atomic nucleus; and

III. living beings, in whole or in part, except for transgenic microorganisms meeting the three requirements of patentability-novelty, inventive step and industrial application-in accordance with Article 8 and which are not mere discoveries.

Sole paragraph. For the purposes of this Law, transgenic microorganisms mean organisms, except for plants or animals in whole or in part, that due to direct human intervention in their genetic composition express a characteristic that cannot normally be achieved by the species under natural conditions.

Section III
Compulsory Licenses

Art. 68. A patent shall be subject to compulsory licensing if the owner exercises his rights therein in an abusive manner or if he uses it to abuse economic power under the terms of an administrative or judicial decision.

(1) The following may also be grounds for compulsory licensing:

I. failure to work the subject matter of a patent on the territory of Brazil, failure to manufacture or incomplete manufacture of the product or failure to completely use a patented process, except for failure to work due to lack of economic viability, in which case importing shall be admitted; or

II. marketing that does not satisfy the needs of the market.

(2) A license may be requested only by a party having a legitimate interest and having the technical and economic capacity to effectively work the subject matter of the patent for the purposes predominantly of the internal market, not subject in such case to the exception contained in item I of the preceding paragraph.

(3) If a compulsory license is granted on the grounds of abuse of economic power, a period of time, limited to that laid down in Article 74, shall be secured to a licensee who proposes to manufacture locally, to import the subject matter of the license, provided it has been placed on the market directly by the patent owner or with his consent.

(4) In the event of importation in order to exploit a patent or importation as provided in the preceding paragraph, third parties shall also be allowed to import a product manufactured according to a process patent or a product patent, provided it has been placed on the market directly by the patent owner or with his consent.

(5) A compulsory license under paragraph (1) may only be requested on expiry of three years after grant of the patent.

Art. 69. A compulsory license shall not be granted if, at the date of the request, the patent owner:

I. justifies failure to use for legitimate reasons;

II. proves that serious and effective preparations for exploitation have been made; or

III. justifies failure to manufacture or to market on grounds of legal obstacles.

Art. 70. A compulsory license may also be granted where the following circumstances are shown to apply in conjunction:

I. there exists a situation of dependency of one patent on another;

II. the subject matter of the dependent patent constitutes a substantial technical advance in relation to the earlier patent; and

III. the owner fails to reach agreement with the owner of the independent patent on the exploitation of the earlier patent.

(I) For the purposes of this Article, a dependent patent shall be a patent of which the working depends necessarily on the use of the subject matter of an earlier patent.

(2) For the purposes of this Article, a process patent may be considered dependent on a patent for the product concerned and, likewise, a product patent may be dependent upon a process patent.

(3) The owner of a patent subject to a license under this Article shall have the right to a compulsory license under the dependent patent.

Art. 71. In cases of national emergency or of public interest, declared in a decision of the Federal Executive Power, and where the patent owner or his licensee do not satisfy such need, a temporary non-exclusive compulsory license to exploit the patent may be granted ex officio, without prejudice to the rights of the owner of the patent.

Sole paragraph. The instrument granting the license shall set out its term of validity and any possibililty of extention.

Art. 72. Compulsory licenses shall always be granted without an exclusive nature and sublicensing shall not be permitted.

Art. 73. An application for a compulsory license shall be drawn up by setting out the conditions offered to the patent owner .