In Brazil, once a patent is granted, the patentee must begin commercial exploitation or manufacturing within three years. This requirement ensures that patent rights promote innovation, fair competition, and national industrial development.
If the patent is not used, a compulsory licensing proceeding may be initiated under Articles 68, 70, and 71 of Law 9,279/96. The main grounds include:
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Abusive exercise of patent rights (Art. 68);
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Abuse of economic power (Art. 68);
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Lack of exploitation in Brazil (Art. 68, §1, I);
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Insufficient commercialization to meet market needs (Art. 68, §1, II);
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Dependence on another patent (Art. 70);
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Public interest or national emergency (Art. 71 – Decree No. 3.201).
Article 69 specifies that a compulsory license will not be granted if the patent holder:
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Provides a legitimate justification for non-use.
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Demonstrates serious preparations for exploitation.
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Faces a legal impediment preventing commercialization.
Where applicable, any third party with legitimate interest and technical and economic capacity may request the license, ensuring efficient exploitation mainly for the domestic market.
Paying patent annuities is not proof of commercial exploitation. Annuities only maintain the patent’s validity. Real evidence comes from product sales, licensing revenue, or production.
Although rare, compulsory licensing is a key instrument for balancing private patent rights with public interest, particularly in critical sectors such as pharmaceuticals, energy, and biotechnology.
