According the Brazilian Law you can consider a patent of invention  null or without effect when this intellectual property is against the law. For example in the national law the requisites of patenteability of invention are in the Art. 8º of Industrial Property Law: Art.8º "Are patenteable the invention that obey the requisites of novelty, inventive activity and industrial application." Beyond of this requisites in Brazilian Law there´s the sufficiency descriptive, but in the majority of countries in the world there´re only three requisites: novelty, inventive activity and industrial application. In this case if you comercialize a patent of invention in domain public or without novelty you´re acting against the law, then it´s a practice with nulity.

On the other hand are requisites of patenteability in a patent of utility model the following: industrial application, novelty and inventive act, including the sufficiency descriptive in Brazil, differently in others countries that generally accept only the first three requisites. Whether  you patent a product of utility model without a description that how it works, it´s a null act, according the Brazilian Law that demand a sufficency descriptive of a patent.

The null act has entire effects: in the present, past and future, but the annulability has  only present and future effects.

By the way some persons can interpose a judicial action of nulity in any time of validity of patent: National Institute of Industrial Property or any person with interest legitimate and the judge will may preventivelly or incidentally, determine the suspension of the effects of patent, accomplishing the requisites of Law.

By César Alexandre Leão Barcellos

      Lawyer and Licensed Patent and Trademark Attorney

      Bar Association nº 40362 and API/BR 0840

      Phone/Celular: +55 51 32262074/+55 51 99522071

       Brazil, Zip Code: 90010-080

      E-Mail: cesar_alb@terra.com.br

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