Nuno Cruz, lawyer and founding partner of PCA – Pereira da Cruz e Associados and a specialist in Industrial Property, Patents and Intellectual Property, talks to @dinheiro vivo about the current challenges in this area of law.
To what extent can good patent management contribute to economic development in the post-crisis era?
It is well known that patents are the main incentive for research in the most diverse sectors. In the period following a crisis, such as this pandemic, research is more vital than ever in order to overcome the problems and issues raised. It thus seems clear that patents will be one of the most essential tools for economic development in the post-crisis era. Because patents are also considered as innovation products that can contribute to protecting and improving marketing conditions, I would say that it is a competitive advantage to strategically manage a patent portfolio on the various markets where the patent is protected and/or where protection is being sought. The drafting and management of a patent should be handled by qualified professionals, who is Portugal are known as Official Industrial Property Agents.
What do you think about the controversy surrounding vaccines? Would it be useful to waive patent protection or should it be maintained while also ensuring production outside of the originator laboratories?
I honestly believe that this is a false question – or at least an issue that has been unnecessarily exaggerated. It is understandable that this is an attractive issue for political and media debates. We are supposedly looking at the mere economic interest of pharmaceutical companies as an obstacle to the necessary production and distribution of vaccines around the world. We must start by seeing what patents we are actually talking about. The vaccines that have appeared certainly involved a high level of inventive activity (achieved moreover in record time). However, the production of vaccines is naturally not just about the efficacy (or lack of efficacy) of patents that protect the respective formulations. It involves know-how on the part of the company (going far beyond the product or process protected) and a highly specialised production capacity that is certainly not available to most pharmaceutical companies, at worldwide level. In view of the time and resources necessary to create new production hubs, it is clearly preferable for vaccines to be manufactured by the companies that currently have the capacity to do so. In fact, taking the examples of the Chinese and Russian vaccines, I do not know of any companies that have come forward as candidates for the manufacture and distribution of vaccines that have cited the existence of patents as an obstacle.
Do you think that the areas designated as priorities in the Recovery and Resilience Plan, which will serve as the basis for the application of the European bazooka, will be able to open up opportunities to breathe new life into this field – namely with regard to environmental matters, including green hydrogen, but also in terms of digitalisation?
What is fundamental, in my opinion, is that the European funds are directed to businesses, in particular those that present credible innovation or production projects.
Is what we have in Portugal in this area sufficient or should there be more investment? What should the Government do in order to optimise patent matters?
The legislation that currently exists in Portugal in the field of patents is perfectly adequate. The national body responsible for this area – the National Institute of Industrial Property (INPI) – is perfectly competent in terms of expertise and efficiency to meet the challenge. However, it is worrying that the Government does not provide the INPI with the (financial) means to offer its examiners a solid career path compatible with the demands of the profession.
In what areas of business are patents fundamental?
Since patents are the driving force (motivation) behind research, they are essential particularly in the cutting-edge technology fields, where inventive activity is vital for competition.
What are the main challenges and obstacles to adequate development in this area of law?
As a lawyer, I attribute a fundamental role to the response of the justice system, where the main players are the Court of Intellectual Property and the higher courts which hear appeals against first instance decisions. It therefore seems to me to be essential to have judges specialising in the field of Intellectual Property. The short terms that judges serve at the IP Court are not, in my opinion, conducive to this specialisation. I would look very favourably upon the creation of a second IP Court (for example in Porto), to be territorially competent for IP cases in the north of the country. It would also be useful to provide the IP Court with advisers to assist the judges in instrumental (though extremely important) tasks in their judicial activity.
Entrepreneurship has become a flagship for Portugal. Can it take on renewed importance in the post-crisis era? And what role does intellectual property play in this?
Yes, entrepreneurship can clearly take on renewed importance in the post-crisis era for anyone who wants to create an opportunity out of uncertainty. Inventive activity is of special importance during these periods and in a market economy innovation does not exist without patents.
