Constitucionalidade do sistema de proteção jurídica de patente e a patente essencial a padrão tecnológico de TIC no Brasil

The constitutionality of the Brazilian system of legal protection of patents is examined, focusing on patents essential to technological standards in the information and communication technology sector. Based on the Federal Constitution, international treaties and infra-constitutional legislation, it is argued that the patent is not an absolute right, but a temporary privilege subordinated to the social interest, the social function of property, free competition, consumer protection and the scientific and technological development of the country. In the case of essential patents, there is tension between interests, as the exclusivity of the holder must coexist with the need for implementers to have access to technologies indispensable to interoperability, especially through licensing on fair, reasonable and non-discriminatory terms. It briefly analyses the Brazilian industrial policy for information and communication technologies, identifying institutional advances, but also gaps regarding the specific normative treatment of essential patents and their fair, reasonable and non-discriminatory licensing. It is concluded that the constitutional legitimacy of patent protection depends on its compatibility with innovation, national technological autonomy and its function in competition.