This Provisional Measure provides for incentives to the Industries
of equipments for Digital TV and semiconductor electronic components,
and for protection of intellectual property of integrated-circuit
topographies.
THE PRESIDENT OF THE REPUBLIC, making use of the
powers conferred on him by article 62 of the Constitution, adopts
the following Provisional Measure with force of law:
CHAPTER I
SUPPORT FOR THE TECHNOLOGICAL DEVELOPMENT OF THE
SEMICONDUCTOR INDUSTRY
Section I
Technological Development Support Program for the
Semiconductor Industry
Art. 1 - The Technological Development Support Program
for the Semiconductor Industry - PADIS is now instituted under the
terms and conditions established by the Executive Power.
Art. 2 - A beneficiary of the PADIS is any legal
entity that invests in research and development - R&D as defined
in article 6 and is engaged, either separately or in conjunction,
with respect to the following devices:
I - electronic semiconductors, classified at positions
85.41 and 85.42 of the Mercosul Common Nomenclature (NCM), in the
activities of:
a) conception, development and design;
b) physical-chemical diffusion or processing; or
c) encapsulation and testing;
II - displays as defined in §2, the activities
of:
a) conception, development and design;
b) manufacture of the photosensitive, photo- or
electroluminescent and light emitting elements; or
c) final assembly of the display and electrical
and optical tests.
§1° - For the purposes of this article,
the legal entity may be engaged engaged in the activities:
I - separately, when it carries out all the steps
foreseen in the sub-section into which it falls; or
II - in conjunction, when it carries out all the
activities foreseen in the section into which it falls.
§2 - Section II of the heading of the article:
I - embraces the displays listed in an act of the
Executive Power, intended for use as inputs in electronic equipment,
with liquid crystal (LCD) technology components, photoluminescent
(plasma display panel - PDP) components, electroluminescent (light
emitting diodes - LED components, organic light emitter - OLED components
or thin film electroluminescent displays - TFEL) or the like, with
of electric field emission microstructures;
II - does not embrace cathode ray tubes (CRT).
§3 - The legal entity referred to the heading
of this article must be engaged exclusively in the activities foreseen
in this article.
§4 - The investment in research and development
referred to in the heading of this article and the performance of
the activities dealt with under sections I and II of the heading of
this article should be carried out in accordance with projects approved
under the terms of article 5.
Section II
The application of the PADIS
Art. 3 - In the case of sale on the internal market
or of importation of new machines, apparatuses, instruments and pieces
of equipment, for incorporation into the fixed assets of the legal
entity that purchases on the internal market or imports, intended
for the activities dealt with under subsections I and II of the heading
of article 2, the following tax rates are reduced to zero:
I - the contributions for PIS/PASEP and of for Social
Security Financing (COFINS) incident on the revenue of the selling
legal entity, when the purchase is effected by a legal entity that
is a PADIS beneficiary;
II - the contributions for PIS/PASEP-Import and for
COFINS-Import, when the importation is made by a legal entity that
is a PADIS beneficiary;
III - the Tax on Industrialized Products (IPI),
due upon importation or upon leaving an industrial establishment or
equivalent, when the importation or purchase on the internal market
is effected by a legal entity that is a PADIS beneficiary.
§1 - The reductions of tax rates provided for
in the heading of this article will also embrace software and inputs
intended for the activities dealt with under article 2, when imported
or bought on the internal market by a legal entity that is a PADIS
beneficiary.
§2 - The provisions of the heading and of §1
of this article embrace only the goods and inputs listed in an act
of the Executive Power.
§3 - The tax rate is reduced to zero for contributions
of intervention in the economic domain, intended for financing the
Program of Stimulus to the University-Company Integration for supporting
Innovation provided for in article 2 of Law No. 10168 of December
29, 2000, in remittances abroad for the payment of contracts relating
to the exploitation of patents or of use of marks and the supply of
technology and rendering technical assistance, when effected by a
legal entity that is a PADIS beneficiary, when related to the activities
defined in article 2.
§4 - For the purposes of this article, any
legal entity that acquires foreign goods as a result of importation
made on its own account and order by an importing legal entity is
considered to be an importer.
§5 - The Import Tax (II) rate is reduced to
zero for new machines, apparatus, instruments and pieces of equipment
listed in an act of the Executive Power, under the conditions and
for the time limit fixed therein, when imported by a legal entity
that is a PADIS beneficiary for incorporation into its fixed assents
and intended for the activities dealt with under sections I and II
of the heading of article 2.
Art. 4 - The tax rates on the sales of the devices
referred to under sections I and II of the heading of article 2, effected
by a legal entity that is a PADIS beneficiary are reduced:
I - to zero for contributions to the PIS/PASEP and
to the CONFINS incident on the respective revenues;
II - to zero for the Tax on Industrialized Products
(IPI) due upon leaving the industrial establishment; and
III - by one hundred percent for the income tax
and additional taxes incident on profits.
§1 - The reductions of the tax rates provided
for in sections I and II of the heading of this article apply also
to the revenues resulting from the sale of designs, when effected
by a legal entity that is a PADIS beneficiary.
§2 - The reductions of the tax rates provided
for in subsections I and II of the heading of this article relating
to the sale of the referred devices:
I - under subsection I of the heading of article
2, apply only when:
a) the design has been developed in this Country;
or
b) the diffusion has been effected in this Country.
II - under section II of the heading of article
2, apply only when:
a) the design has been developed in this Country;
or
b) the manufacture of the photosensitive, photo-
or electroluminescent elements and of the light emitting diodes has
been carried out in this Country.
§3 - In order to enjoy the reduction of tax
rates dealt with under section III of the heading of the article,
the legal entity must clearly and accurately demonstrate in its accounting,
the elements that compose the revenues, costs, expenses and income
of the period of determination thereof, referring to the sales on
which the reduction applies, duly separated from other activities.
§4 - The tax value that fails to be paid by
virtue of the reduction dealt with under section III of the heading
of this article may not be distributed to the partners and shall constitute
a capital reserve of the legal entity, which may only be used for
absorption of losses or the increase in capital stock.
§5 - Distribution of the tax value is considered
to be:
I - the restitution of capital stock to partners,
in the event of reduction of the capital stock, up to the amount of
the increase with the incorporation of the capital reserves; and
II - the distribution of the net assets of a dissolved
corporation, up to the value of the capital reserves.
§6 - Non-compliance with the provisions of
§§ 2 and 4 implies in the loss of the right to reduction
of tax rates provided for in section III of the heading of this article
and in the obligation of paying, with respect to the distributed amount,
the tax that the legal entity has failed to pay, plus interest and
a fine for deferred payment, under the law.
§7 - The reductions of tax rates provided for
in this article do not apply cumulatively with other reductions or
benefits relating to the same taxes or dues, except for the provisions
of section I of the heading of this article and under § 2 of
article 17 of Law No. 11196 of November 21, 2005.
Section III
Approval of projects
Art. 5 - The projects referred to in §4 of
article 2 must be approved in a joint act of the Ministry of Finance,
the Ministry of Science and Technology and the Ministry of Development,
Industry and Foreign Trade, under the terms and conditions established
by the Executive Power.
§1 - The approval of a project is conditioned
to the proving of fiscal regularity of the interested legal entity
with respect to taxes and contributions administered by the Tax Authority
of the Ministry of Finance and by the Social Welfare Secretariat of
the Ministry of Social Welfare.
§2 - The time limit for submission of projects
is four years, which may be extended for up to four years in an act
of the Executive Power.
Section IV
Investment in research and development
Art. 6 - A legal entity that is a PADIS beneficiary
must invest annually in research-and-development activities to be
carried out in this Country, at least five percent of its gross turnover
on the internal market, minus the taxes that are incident on the commercialization
of the devices mentioned in sections I and II of the heading of article
2 and the purchase value of products that enjoy incentives under the
terms of this Chapter.
§1 - Investments in research and development
activities will only be permitted in the areas of microelectronics,
of the devices mentioned in sections I and II of article 2, of optoelectronics,
of software, of support for such designs and of design methodology
and of processes of manufacturing the components mentioned under sections
I and II of article 2.
§2 - At least one percent of the gross turnover,
minus the taxes that are incident on the commercialization in the
terms of the heading of this article, must be applied by means of
agreements with research-and-development centers or institutes or
official or recognized Brazilian teaching entities, accredited by
the Committee of the Area of Technology and Information (CATI), referred
to in article 30 of Decree No. 5906 of September 26, 2006, or by the
Committee of the Research-and-Development Activities of the Amazon
Region (CAPDA), referred to in article 26 of Decree No. 6008 of December
29, 2006.
§3 - Any intellectual property resulting from
the research and development carried out through projects approved
under the terms of this Chapter should have its protection requested
in the national territory at the competent body, as the case may be,
by the Brazilian legal entity that is the PADIS beneficiary.
Art. 7 - Any legal entity that is a PADIS beneficiary
must, by July 31 of each civil year, provide the Ministry of Science
and Technology with reports demonstrating compliance, in the previous
year, with the obligations and conditions established in article 6.
Art. 8 - In case the investments in research and
development provided for in article 6 do not, in a given year, reach
the minimum percentage fixed, a legal entity that is a PADIS beneficiary
apply the residual value in the National Research and Tecnological
Development Fund (FNDCT) (CT-INFO or CT-Amazônia) , plus a 20-percent
fine and interest equivalent to the rate of the Special Liquidation
and Custody System (SELIC), calculated since January 1 of the year
following that in which the percentage was not reached until the date
of the effective application.
§1 - A legal entity that is a PADIS beneficiary
must effect the application mentioned in the heading of this article
until the last working day of the month of March of the year following
that in which the percentage was not reached.
§2 - In the situation mentioned in the heading
of this article, failure to make the application in question within
the time limit provided for in §1 will oblige the taxpayer to
pay:
I - interest and a fine for late payment, under
the terms of the law, relating to the contributions and to the tax
that has not been paid as a result of the provisions of sections I
and II of article 4; and
II - the income tax and additional amounts that
have not been paid as a result of the provisions of section II of
article 4, plus interest and a fine for late payment under the terms
of thelaw.
§3 - The interest and fine provided for in
section I of §2 of this article will be paid separately and should
be calculated:
I - from the date on which the sale is effected,
in the case of section I of article 4, or from the date on which the
product leaves the industrial establishment, in the case of section
II of article 4; and
II - based on the value of the contributions and
of the tax that were not paid, proportionally to the difference between
the minimum percentage of applications in research and development
fixed and that which was actually effected.
§4 - The payments effected under the §§2
and 3 do not exempt the legal entity that is a PADIS beneficiary from
the obligation of applying in the FUNDCT (CT-INFO or CT-Amazônia)
under the heading of this article.
§5 - Failure to pay or an irregularity in the
payment under §2 will subject the legal entity to an ex-officio
record, with application of an ex-officio fine under the terms ofthe
law.
§6 - Non-compliance of the provisions of this
article makes the legal entity subject to the provisions of article
9 of this Provisional Measure.
Section V
Suspension and cancellation of application
of the PADIS
Art. 9 - Any legal entity that is a PADIS beneficiary
will be punished, at any time, with suspension of the application
of articles 3 and 4, without prejudice to the application of specific
penalties, in the case of the following infractions:
I - non-submission or non-approval of the reports
provided for in article 7;
II - non-compliance with the obligation of effecting
investments in research and development under article 6, the provisions
of article 8 having to be met;
III - infringement on the provisions of the regulation
of the PADIS; or
IV - irregularity with respect to tax or contribution
administered by the Tax Authority or by the Welfare Revenue Secretariat.
§1 - The suspension dealt with under the heading
of the article will result in cancellation of the application of the
provisions of articles 3 and 4 should the legal entity that is a PADIS
beneficiary not correct the infraction within a 90-day time limit
from the notification of suspension.
§2 - The legal entity that gives rise to two
suspensions within a time limit of less than two years shall be punished
with cancellation of the application of articles 3 and 4.
§3 - The penalty of cancellation of the application
may only be reverted after two years from the elimination of the infraction
which has motivated it.
§4 - The Executive Power will regulate the
provisions of this article.
Section VI
General provisions
Art. 10 - The Ministry of Science and Technology
shall inform the Tax Authority of the following cases:
I - non-compliance, by the legal entity that is
a PADIS beneficiary, with the obligation of forwarding the statement
reports, within the time limit of article 7, or with the obligation
of applying in the FNDCT (CT-INFO or CT-Amazônia) under the
heading of article 8, observing the time limit of its §1, when
the minimum percentage of investment in research and development has
been reached;
II - non-approval of the statement reports dealt
with under article 7; and
III - infringement on the regulation provisions
of the PADIS.
Sole Paragraph - The cases foreseen under section I shall be reported
by August 30 of each calendar year, and the other cases within 30
days after the occurrence has been detected.
Art. 11 - The Ministry of Science and Technology
and the Ministry of Development, Industry and Foreign Trade shall
issue, every three years, reports with the economic and technological
results achieved with application of the provisions of this Chapter.
CHAPTER II
THE TECHNOLOGICAL DEVELOPMENT OF THE INDUSTRY
OF EQUIPMENT FOR DIGITAL TV
Section I
Program of Support for the Technological Development
of the Industry of Equipment for Digital TV
Art. 12 - The Technological Development Support
Program for the Industry of Equipment for Digital TV - PATVD is hereby
instituted under the terms and conditions established by the Executive
Power.
Art. 13 - A beneficiary of the PATVD is any legal
entity that makes investment in research and development - R&D,
under article 17, and that is engaged in the activities of research
and development and manufacture of radio frequency signal transmitter
equipment by to digital television, classified in code 8325.50.2 of
the MCN.
§1 - For the purposes of this article, the
legal entity mentioned in the heading of the article must comply with
the Basic Productive Process BPP / PPB established by interministerial
administrative ruling of the Ministry of Development, Industry and
Foreign Trade and the Ministry of Science and Technology or, alternatively,
meet the criteria of goods developed in this Country, defined by an
administrative ruling of the Ministry of Science and Technology.
§2 - The investment in research and development
and the performance of the activities mentioned in the heading of
this article should be effected in accordance with projects approved
under article 16.
Section II
The application of the PATVD
Art. 14 - In the case of sale on the internal market
or of importation of new machines for incorporation into the fixed
assets of the purchasing legal entity on the internal market or importing
legal entity, intended for the manufacture of the equipment dealt
with under the heading of the article of article 13, the following
tax rates are reduced to zero:
I - of the contribution for the PIS/PASEP and of
the COFINS incident on the revenue of the selling legal entity, when
the purchase is made by a legal entity that is a PATVD;
II - of the contribution for the PIS/PASEP-Import
and of the COFINS-Import, when the importation is made by a legal
entity that is a PATVD beneficiary; and
III - of the Tax on Industrialized Products due
upon importation or upon leaving the industrial establishment or equivalent,
when the importation of purchase on the internal market is made by
a legal entity that is a PATVD beneficiary.
§1 - The reductions of tax rates foreseen in
the heading of this article also embrace software and inputs intended
for the manufacture of the pieces of equipment dealt with under article
13, when acquired on the internal market or imported by a legal entity
that is a PATVD beneficiary.
§2 - The reductions of tax rates mentioned
in the heading and §1 of this article embrace only goods and
inputs listed in an act of the Executive Power.
§3 - The tax rate is reduced to zero for the
contribution of intervention in the economic domain intended for financing
the Program for Stimulus to the University-Company interaction for
Support to Innovation dealt with under articles 2 of Law No. 10168
of 2002, for remittances abroad for the payment of contracts relating
to the exploitation of patents or of use of marks and of supply of
technology and providing technical assistance, when made by a legal
entity that is a PATVD beneficiary, with respect to the activities
defined in article 13.
§4 - For the purposes of this article, any
legal entity that acquires foreign goods as a result of importation
made on its own account and order by an importing legal entity is
considered to be an importer.
§5 - The Import Tax (II) rate is reduced to
zero for new machines, apparatus, instruments and pieces of equipment
listed in an act of the Executive Power, under the conditions and
for the time limit fixed therein, when imported by a legal entity
that is a PADIS beneficiary for incorporation into its fixed assents
and intended for the activities dealt with under article 13.
Art. 15 - In the sales of transmitting equipment
dealt with under article 13, carried out by a legal person that is
a PATVD beneficiary, the following tax rates are reduced to zero:
I - for the contribution to the PIS/PASEP and to
the COFINS falling on the revenues obtained; and
II - for the Tax on Industrialized Products due
upon leaving the industrial establishment.
Sole Paragraph - The reductions of tax rates dealt
with in this article do not apply cumulatively with other reductions
or benefits relating to the same tax or to the same contributions.
Section III
The projects
Art. 16 - The projects referred to in §2 of
article 13 shall be approved in a joint act of the Ministry of Finance,
Ministry of Science and Technology and Ministry of Development, Industry
and Foreign Trade, under the terms and conditions established by the
Executive Power.
Sole Paragraph - The approval of a project is conditioned
to proof of the fiscal regularity of the interested legal entity,
with respect to the taxes and contributions administered by the Tax
Authority and by the Social Welfare Secretariat.
Section IV
Investment in research and development
Art. 17 - Any legal entity that is a PATVD beneficiary
must invest annually in R&D activities to be carried out in this
Country at least one percent of its gross turnover on the internal
market, after deduction of the taxes incident on commercialization
of the transmitter equipment mentioned in article 13.
§1 - Only investments in activities of research
and development of the equipment referred to in article 13, of software
and of inputs for such equipment will be admitted.
§2 - At least 0.5 percent of the gross turnover,
after deduction of the taxes incident on commercialization, I accordance
with the heading of this article, must be applied by means of agreement
with research centers or institutes, or official or recognized Brazilian
teaching entities accredited by the CATI or by the CAPDA.
§3 - Any intellectual property resulting from
the research and development made through projects approved under
the terms of this Chapter shall have protection requested in the national
territory at the competent Body, as the case may be, by a legal entity
that is a PATVD beneficiary.
Art. 18 - A legal entity that is a PATVD beneficiary
shall provide the Ministry of Science and Technology, by July 31 of
each calendar year, with reports demonstrating compliance, in the
previous year, of the obligations and conditions established in article
17.
Art. 19 - In case the investments in research and
development foreseen in article 17 do not reach, in a determined year,
the minimum percentage fixed, the legal entity that is a beneficiary
of the PATVD shall apply the residual value in the FNDCT (CT-INFO
or CT-Amazônia), plus a 20-percent fine and plus interest equivalent
to the SELIC rate, calculated since January 1 of the year following
that in which the percentage was not reached until the date of effective
application.
§1 - A legal entity that is a PATVD beneficiary
must make the application mentioned in the heading of this article
up to the last working day of the month of March of the year following
that in which the percentage was not reached.
§2 - In the case mentioned in the heading of
this article, failure to make the application as required, within
the time limit foreseen in the §1, will obligate the taxpayer
to pay interest and fine for late payment, under the terms of the
law, with respect to the contributions and tax that were not paid
as a result of the provisions of sections I and II of article 15.
§3 - The interest and fine mentioned in §2
of this article should be paid separately and calculated:
I - from the date on which the sale is made, in
the case of the section I of article 15, or from the date on which
the product leaves the industrial establishment, in the case of section
II of article 15; and
II - based on the value of the contributions and
taxes that were not been collected, proportionally to the difference
between the minimum percentage of applications in research and development
fixed and that actually made.
§4 - The payments made under §§ 2
and 3 do not exempt a legal entity that is PATVD beneficiary the from
the obligation of making the application in the FNDCT (CT-INFO or
CT-Amazônia), in accordance with the heading of this article.
§5 - Failure to pay or irregularity in the
payment provided for in 2 will subject the legal entity to an ex-officio
record, with application of an ex-officio fine under the terms of
the law.
§6 - Non-compliance with the provisions of
this article make the legal entity subject to the provisions of article
20 of this Provisional Measure.
Section V
The suspension and cancellation of application
of the PATVD
Art. 20 - Any legal entity that is a PATVD beneficiary
will be punished, at any moment, with suspension of the application
of articles 14 and 15, without detriment to the specific penalties,
in the cases of the following infractions:
I - non-compliance with the conditions established
in §1 of article 13;
II - non-compliance with the obligation of making
investments in research and development under article 17, the provisions
of article 19 being observed;
III - non-submission or non-approval of the reports
mentioned in article 18;
IV - infraction of the regulation provisions of
the PATVD; or
V - irregularity with respect to taxes or contributions
administered by the Federal Tax Authority or by the Social Welfare
Secretariat.
§1 - The suspension dealt with under the heading
of this article well converted into cancellation of the application
of articles 14 and 15, in case the legal entity that is a PATVD beneficiary
does not correct the infraction within a 90-day time limit from the
notification of the suspension.
§2 - Any legal entity that becomes subject
to two suspensions within a time limit of less than two years shall
be punished with cancellation of the application of articles 14 and
15.
§3 - The penalty of cancellation of the application
may only be reverted after two years from correction of the infraction
that motivated it.
§4 - The Executive Power will regulate the
provisions of this article.
Section VI
General provisions
Art. 21 - The Ministry of Science and Technology
shall report to the Tax Authority the cases of:
I - non-compliance, by a legal entity that is a
PATVD beneficiary:
a) of the conditions established in §1 of article
13;
b) of the obligation of forwarding the statement
reports, within the time limit foreseen in article 18, or of the obligation
of applying in the FNDCT (CT-INFO or CT-Amazônia), under the
heading of article 19, observing the time limit of §1, when the
minimum percentage of investment in research and development is not
reached.
II - non-approval of the statement reports dealt
with under article 18; and
III - infraction of the provisions of regulation
of the PATVD.
Sole Paragraph - The cases mentioned in letter b
of section I should be reported, by August 30 of each calendar year,
and any others within 30 days after detection of the occurrence.
Art. 22 - The Ministry of Science and Technology and the Ministry
of Development, Industry and Foreign Trade will issue, every three
years, reports with the economic and technologic results from the
application of the provisions of this Chapter.
CHAPTER III
TOPOGRAPHY OF INTEGRATED CIRCUITS
Section I
Definitions
Art. 23 - This Chapter establishes the conditions
for protection of integrated circuit topographies.
Art. 24 - The rights established in this Chapter
are ensured:
I - to nationals and to foreigners domiciled in
this Country; and
II - to persons domiciled in a country that, in
reciprocity, grants to Brazilians or to persons domiciled in Brazil
equal or equivalent rights.
Art. 25 - For the purposes of this Chapter, the
following definitions are adopted:
I - an integrated circuit means a product, either
in final or intermediate form, with elements of which at least one
is active, and with some or all the interconnections integrally formed
on or inside one piece of material and the purpose of which is to
perform an electronic function;
II - integrated circuit topography means a series
of images relates to each other, constructed or encoded under any
means of form, which represents the three-dimensional configuration
of the layers that compose an integrated circuit, and in which each
image represents, in whole or in part, the geometric arrangement or
arrangements of the surface of the integrated circuit at any stage
of its conception of manufacture.
Section II
Ownership to the right
Art. 27 - A registration that guarantees protection
under the conditions of this article is guaranteed to the creator
of the topography of an integrated circuit.
§1 - In the absence of evidence to the contrary,
the applicant for registration is presumed to be the creator.
§2 - When a topography is created in conjunction
by two or more persobns, registration may be requested by all or any
of them, by naming and qualifying the others in order to guarantee
their respective rights.
§3 - The protection may be requested bt the
author, his heirs or successors, by an assignee or by any person who
the law or employment contract, service contract or statutory connection
determines that is the owner, consular legalization of the pertinent
documents not being required.
Art. 28 - Except for stipulation to the contrary,
the rights relating to an integrated circuit topography shall belong
exclusively to the employer, service contractor or entity that generates
the relationship when developed during the effectiveness of an employment
contract, service contract or statutory relationship, in which the
creative activity results from the very nature itself of the work
related to such relationeship or when there is use of resources, technological
information, industrial or business secrets, materials, installations
or equipment of the employer, service contractor or other entity that
generates the relationship
§1 - In the absence of an agreement to the
contrary, the compensation for the work or service rendered will be
limited to the remuneration agreed upon;
§2 - The rights relating to an integrated circuit
topography shall belong exclusively to the employee, service provider
or public employee when developed without relationship to an employment
contract or service contract and without the use of resources, technological
information, industrial or business secrets, materials, installations
or equipment of the employer, service-contracting party or entity
that generates a statutory relationship.
§3 - The provisions of this article will also
apply to scholarship holders, trainees and the like.
Section III
Protected topographies
Art. 29 - The protection provided for in this Chapter
will apply to any topography that is original in the sense that it
results from the intellectual effort of its creator or creators and
that is not common or well known to technicians, experts or integrated
circuit manufactures at the moment of its creation.
§1 - A topography that results from a combination
of common elements and interconnections, or that incorporates, with
due authorization, protected topographies belonging to third parties,
will only be protected if the combination, taken as a whole, meets
the provisions of the heading of this article.
§2 - No protection will be granted to concepts,
processes, systems or techniques on which the topography is based
or to any information stored by employing them.
§3 - Protection granted under this Chapter
is not dependent upon the fixation of the topography.
Art. 30 - Protection depends on registration, which
will be effected by the National Institute of Industrial Property
(INPI).
Section IV
Application for registration
Art. 31 - An application for registration shall
refer to a single topography, must meet the legal requirements regulated
by the INPI and should contain:
I - a request;
II - a description of the topography and of its
corresponding function;
III - drawings or photographs of the topography,
which are essential for enabling one to identify and characterize
its originality;
IV - a declaration of previous exploitation, if
any, indicating the date on which it began; and
V - proof of payment of the official fee relating
to the filing of the application.
Sole Paragraph - The application and any document
accompanying it shall be submitted in the Portuguese language.
Art. 32 - At the request of the applicant, at the time of filing,
the applicant may be maintained in secrecy for a 6-month period from
the filing date, after which it will be processed in accordance with
the provisions of this Chapter.
Sole Paragraph - During the secrecy period, the
application may be withdrawn, with return of the documentation to
the interested party, without this producing any effect, as long as
the request is submitted to the INPI up to one month prior to the
end of the secrecy period.
Art. 33 - Once the registration application has
been protocolled, the INPI will make a formal examination, and may
formulate requirements, which shall be complied with integrally within
a 60-day time limit, on pain of the application being definitively
shelved.
Sole Paragraph - An application indicating an exploitation
starting date more than two years prior to the filing date will also
be definitively shelved.
Art. 34 - If no requirements are formulated or if
they are formulated and integrally met, the INPI will grant registration,
publish it in its entirety and issue the respective certificate.
Sole Paragraph - The registration certificate shall contain the registration
number and date, name, nationality and domicile of the owner, the
exploitation starting date, if any, or the filing date of the registration
application, and the title of the topography.
Section V
Rights conferred by the protection
Art. 35 - Protection for the topography will be
granted for ten years from the filing date or from the first exploitation,
whichever occurred first.
Art. 36 - An integrated circuit topography registration
confers on its owner the exclusive right to exploit it, and, if the
owner has not given consent, third parties are prohibited from:
I - reproducing the topography, in whole or in part,
by any means, including its incorporation into an integrated circuit;
II - importing, selling or in any other way distributing,
for commercial purposes, a protected topography or an integrated circuit
in which a protected topography is incorporated; or
III - importing, selling or in any other way distributing,
for commercial purposes, a product that incorporates an integrated
circuit, in which a protected topography is incorporated, only insofar
as said product continues to contain an illicit reproduction of a
topography.
Sole Paragraph - The performance of any of the acts
mentioned in this article by unauthorized third parties, between the
exploitation starting date or of the filing date of the application
and the date on which the registration is granted, will authorize
the owner to obtain, after said grant, a compensation that may be
fixed judicially.
Art. 37 - The effects of the protection foreseen
in article 36 do not apply:
I - to acts performed by unauthorized third parties
for the purpose of analysis, evaluation, teaching and research;
II - to acts that consist in creating or exploiting
a topography, which results from the analysis, evaluation and search
for protected topography, provided that the resulting topography is
not substantially identical to the protected one;
III - to acts that consist in importing, selling
or in any other way distributing, for commercial or private purposes,
integrated circuits or products that incorporate them, put into circulation
by the owner of the respective registration of integrated circuit
topography or with his consent; and
IV - to the acts described in sections II and III
of article 36, performed or determined by one that did not know, at
the time of obtaining the integrated circuit or product, or did not
have a reasonable basis to know that the product or the integrated
circuit incorporates a protected topography, reproduced illicitly.
Sole Paragraph - In the case of subsection IV of this article, after
being duly notified, the party responsible for the acts or determination
thereof may effect such acts with respect to the products or integrated
circuit that are in stock or have been previously ordered, as long
as, with respect to these products or circuits, the party pays to
the owner of the right a remuneration equivalent to that which would
be paid in the case of a voluntary license.
Section VI
Extinction of the registration
Art. 38 - A registration becomes extinct:
I - due to expiry of the term of validity; or
II - by waiver of the owner by means of a document
that meets the legal requirements, without prejudice to the rights
of third parties.
Sole Paragraph - Once the registration has become
extinct, the object of protection falls into public domain.
Section VII
Nullity
Art. 39 - An integrated circuit topography registration
will de declared judicially null if it has been granted at variance
with the provisions of this Chapter, especially when:
I - the presumption of § 1 of article 27 proves
to be untrue;
II - the topography does not meet the requirement
of originality provided for in article 29;
III - the documents submitted, as foreseen in article
31, are not sufficient for identifying the topography; or
IV - the application for registration was not filed
within the time limit defined in the sole paragraph of article 33.
§1 - Nullity may be either total or partial;
§2 - Partial nullity only occurs when the remaining
part constitutes matter protected in its own right.
§3 - The nullity of a registration will produce
effects from the date of the beginning of protection defined in article
35.
§4 - In the event of non-compliance with the
provisions of §1 of article 27, the creator may alternatively
claim adjudication of the registration.
Art. 40 - Once the registration has been declared
null, the respective certificate will be cancelled.
Section VIII
Assignments and alterations of the registration
Art. 41 - The rights to an integrated circuit topography
may be assigned.
§1 - The assignment may be either total or
partial, in which case the corresponding percentage should be indicated.
§2 - The assignment document should contain
the signatures of the assignor and of the assignee, as well as the
signatures of two witnesses, consular legalization not being required.
Art. 42 - The INPI will make the following annotations:
I - assignments, showing the complete identification
of the assignor;
II - any limitation or burden on the registration;
and
III - alterations of name, seat or address of the
owner.
Art. 43 - Annotations will produce effect with respect
to third parties after publication in the official publication of
the INPI, or in the absence of publication, after sixty days from
the protocolling of the petition.
Section IX
Licenses and non-authorized use
Art. 44 - The owner of an integrated circuit topography
registration may sign a license contract for exploitation.
Art. 45 - The INPI will record license contracts
so that they can produce effects with respect to third parties.
Art. 46 - Except for a contractual stipulation to
the contrary, in the event of cross licenses, the remuneration relating
to the licensed protected topography may not be charged to third parties
that have acquired integrated circuits incorporating it.
Sole Paragraph - The charging of third parties that
acquire the integrated circuit will only be admitted if the purchaser
is expressly notified of this possibility, on the act of purchase.
Art. 47 - The Public Power may make non-commercial
public use of protected topographies, either directly or by contracting
or authorizing third parties, observing the provisions of sections
III to VI of article 51 and article 53.
Sole Paragraph - When the Public Power, the contracting
party or the authorized party finds out or has demonstrable basis
for knowing, without having to make a search, that the protected topography
is or will be used by or for the Public Power, the owner of the respective
registration shall be promptly informed.
Art. 48 - Compulsory licenses may be granted for
assuring free competition or for preventing abuses of right or of
economic power by the owner of the right, including incapability of
satisfying the market with regard to price, amount or quality.
Art. 49 - When a compulsory license is to be granted,
the following conditions and requirements should be obeyed:
I - the request for a license will be considered on the basis of its
individual merit;
II - the applicant for the license shall demonstrate
that attempts to obtain a license in accordance with the normal commercial
practice have proved to be unfruitful within a reasonable time limit;
III - the extent and duration of the license will
be restricted to the purpose for which the license is authorized;
IV - the license will be non-exclusive;
V - the license will not be transferable, except
if in conjunction with an assignment, alienation or lease of the undertaking
or of the party that exploits it; and
VI - the license will be granted for supplying predominantly
the internal market.
§1 - The conditions established in sections
II and VI do not apply when the license is granted for remedying an
anti-competitive practice or unfair competition, as recognized in
an administrative or judicial proceeding.
§2 - The conditions established in section
II do not apply when the license is granted in a case of national
emergency or of other circumstances of extreme urgency.
§3 - In situations of national emergency or
other circumstances of extreme urgency, the owner of the rights will
be notified as soon as possible.
Art. 50 - A request for a compulsory license shall
be formulated by indicating the conditions offered to the owner of
the registration.
§1 - Once the license application has been
filed, the owner will be summoned to submit a reply within a 60-day
time limit, after expiry of which, if no reply has been submitted
by the owner, the proposal will be considered as accepted under the
conditions offered.
§2 - When an applicant for a license invokes
anti-competitive commercial practice or unfair competition, he shall
attach documentation proving this.
§3 - When a compulsory license requested on
the basis of article 50 involves an allegation of lack of exploitation
or inefficient exploitation, it will rest to the owner of the registration
to prove the groundlessness of such an allegation.
§4 - In the event of a reply, the INPI will
take the steps that are indispensable for settling the controversy
and may, if necessary, designate a committee of experts, including
experts who are not members of the institute.
Art. 51 - The owner shall be adequately remunerated,
according to the circumstances of each case, compulsorily taking into
account the economic value of the granted license, in the arbitration
of this remuneration.
Sole Paragraph - When the grant of a license takes
place on the basis of an anti-competitive practice or unfair competition,
this fact shall be taken into consideration for establishment of the
remuneration.
Art. 52 - Without detriment to the adequate protection
of the interests of the licensees, the license may be cancelled, by
means of a well-founded request by the owner of the rights to the
topography, if and when the circumstances that have caused the grant
thereof cease to exist and if it is improbable for them to occur again.
Sole Paragraph - The cancellation foreseen in the
heading of this article may be refused if the conditions that resulted
in the grant of the license tend to occur again.
Art. 53 - The licensee shall initiate the exploitation
of the object of protection within a 1-year period, wherein the following
is admitted:
I - an extension for an equal period, as long as
the licensee has made substantial and effective preparations for initiating
the exploitation or there are other reasons that legitimate it;
II - an interruption of the exploitation for an
equal time limit, as long as legitimate reasons arise to justify it.
§1 - The exceptions foreseen under sections
I and II may only be exercised by means of a request to the INPI,
duly grounded and proving the allegations that justify them.
§2 - Once the periods provided for in the heading
and sections of this article have expired, without the licensee having
initiated or resumed the exploitation, the license will become extinguished.
Section X
General provisions
Art. 54 - The acts foreseen in this Chapter will
be performed by the parties or by their duly qualified attorneys.
§1 - Powers-of-attorney in a foreign language
shall be accompanied by a sworn public translation., consular legalization
not being required,
§2 - When the power-of-attorney is not filed
initially, it shall be presented within a 60-day time limit from the
protocol date of the application for registration, on pain of definitive
shelving.
Art. 55 - The INPI will not recognise a petition:
I - if it is submitted out of the legal time limit;
II - if it is submitted by a person without a legitimate
interest in the proceedings; or
III - if it is not accompanied by proof of payment
of the respective official fee in the value in force on the date of
its submission.
At. 57 - The time limits established in this Chapter
will be continuous, the right to perform the act after expiry thereof
becoming extinguished automatically, unless the party proves that
it did not performed it due to a legitimate reason.
Sole Paragraph - If the legitimate reason is recognized,
the party will perform the act within the time limit which the INPI
determines.
Art. 58 - The time limits referred to in this Chapter
begin to count from the first working day after summons, unless there
is an express provision to the contrary.
Sole Paragraph - Unless there is a provision to
the contrary, the summons will be made through publication in the
official publicastion of the INPI.
Art. 59 - For the services rendered in accordance
with this Chapter, a fee will be charged, the value of which and the
procedure of paying it beinge established in an act of the Minister
of State to whom the INPI is linked.
Art. 60 - Article 24 of Law No. 8666 of June 21,
1993 will become effective with addition of the following subsection:
"XXVIII - For the supply of goods and services,
produced or rendered in this Country, which involve cumulatively a
high technological complexity and national defense, through a committee
especially designated by the highest authority of the Body."
CHAPTER IV
FINAL PROVISIONS
Art 61 - The Executive Power will regulate the provisions
of this Provisional Measure within a 60-day time limit from its date
of publication.
Art. 62- The provisions of article 3 and of sections
I and II of the heading of article 4 will be in force for fifteen
years from the date of publication of this Provisional Measure.
Art. 63 - The provisions of §3 of article 3
and of section III of the heading of article 4 will be in force for:
I - sixteen years from the date of approval of the
design, in the case of designs that embrace the activities cited under
letters:
a) "a" or "b" of section I of article 2; or
b) "a" or "b" of section II
of article 2;
II - twelve years from the date of approval of the
design, in the case of designs that embrace only the activities cited
under letter:
a) "c" of subsection I of article 2; or
b) "c" of subsection II of article 2.
Art. 64 - This Provisional Measure comes into force
on the date of its publication, producing effects with respect to
article 60 from the 19th day of February, 2007.
Brasília, January 22, 2007; 186th day from Independence
and 119th day of the Republic
