A Usucapião nos Privilégios de Invenção: a apropriabilidade originária pelo uso reiterado

Abstract

This paper focuses on the possibility of an adverse possession of patents, a bundle of rights brought by the adverse possession, the incidence of supressio towards the omissive conduct of the patent owner, a critical review of Francesco Carnelluti s thesis of an entrepreneur easement and, finally, the simultaneous use of patent rights. A conceptual aproach of the terms "good , "estate", "possession" and "property" was made in order to contextualize the static meanings brought from the Roman law into Brazilian codification. The figure includes the possession or ownership rights as a de facto exercise of power over an estate, besides the eventual replacement of this requirement by a qualified use. The paper focus on a critical analysis of the absence of specific legislative provisions concerning to adverse possession towards intellectual property, which results on a disproportional power of the patentee. The acquisition of intellectual property by adverse possession, therefore, allowes equal access, and encourages the pursuit of social function by the patent holder. In the event of adverse possession generating a bundle of rights, property right and free enterprise (and competition) are estimulated by a plurality offer of products, coming from various market players, towards the same patent technology.