Smart IP for Latin America - Annual Conference 2023, Brazil
26-04-2023 / São Paulo, Brasil

Due to their natural and environmental features, Latin American countries have great potential for production of renewable energy. However, the necessary technologies for this often do not emerge in those countries. Harnessing the given potential hence requires the transfer of relevant technologies. Nevertheless, the success of the process of technology transfer depends to a great extent on the regulatory context at the national and regional level, including state incentives and regulations in the areas of contractual law, IP law and competition law. 

Beyond these challenges, there is a risk that the renewable energy sector will follow the path already known by other sectors in this region. Latin American countries may remain mere suppliers of such energies, while value-added innovation (e.g. for the utilization of the energy in the different products and market sectors) occurs in other countries. This scenario may hamper the sustainable economic development of the region. Thus, policies for the promotion of national and regional R&D activities in Latin America should be improved in order to directly address the challenges of climate change. 

Under the title “Technology Transfer and Regional Innovation – The Example of Renewable Energy Production”, the Conference aimed to identify appropriate regulatory policies to promote both the transfer of technology for production of renewable energy and the innovation for the production and utilization of these sources of energy in Latin America.

Moderated by Pedro Henrique D. Batista, Research Fellow of the Max Planck Institute for Innovation and Competition and Research Coordinator of the SIPLA Initiative, the first panel of the Conference offered an overview of both the current status of technology transfer for production of renewable energy and the intensity of R&D activities for the production and utilization of this energy. For this, innovative companies and specialists in regulation from different renewable energy sectors were invited to share their experience. The panel was attended by Dr. Michelle Hallack (Executive Consultant, former coordinator of the knowledge agenda of the energy division of the Inter-American Development Bank), Dr. Rosana Santos (Executive Director of E+ Energy Transition Institute), Dr. Solange David (Executive Consultant, Santo Antônio Energia), Prof. Julio R. Meneghini (Polytechnical Faculty of the University of São Paulo), Dr. Paulo Sinoti (WEG S.A.) and Dr. Riomar Merino Jorge (Brazilian Association for Wind Energy).

Mainly focusing on the Brazilian industries, the panel demonstrated that the country successfully incorporated the most advanced technologies for production of renewable energy.This is particularly notable in fields with mature technologies such as wind and solar. In these cases, a high percentage of the technological goods necessary for energy production is manufactured in the national territory. One of the main reasons for such successful technology transfer is the state intervention through conditions established in auctions for the public concession of energy production facilities and capacities, as well as in the funding programs of the Brazilian National Development Bank.

Nevertheless, relevant regulatory challenges still persist, since factors such as foreign certification standards, national taxes and barriers to efficient logistics hamper the production of renewable energy. Existing IP rights and faulty discrimination of technologies by the state may also threaten technology transfer and innovation in relevant sectors. Although independence in the production of these energies is not a realistic objective in all sectors, experts agree that coordinated regional action by Latin American countries may be sufficient to reduce dependence on other countries.

Moderated by Juliana Krueger Pela (Professor at the University of São Paulo Law School and Coordinator of the Brazilian SIPLA Observatory), the second conference panel addressed the relationship between renewable energy and IP and offered an overview of the contractual law aspects regarding technology transfer agreements.

In its first part of the panel, Dr. Ana Paula Gomes Pinto, Chief of Staff at the Brazilian National Institute of Intellectual Property (INPI), gave a presentation on the interaction between climate change and IP, focusing on “green patent” strategies adopted in Europe and in Brazil to face the current environmental challenges. In the second part, Prof. Paula Andrea Forgioni (University of São Paulo Law School, Brazil), Prof. Manuel Guerrero Gaitán (University Externado of Colombia and coordinator of the Colombian SIPLA Observatory) and Prof. Guillermo Cabanellas de las Cuevas (University of San Andres, Argentina) discussed (i) the need of a specific contract law as an instrument to promote technology transfer and innovation in Latin American countries, (ii) the role of the IP authority regarding technology transfer agreements; (iii) the mechanisms available in general contract law to fill the gap left by the lack of a specific regulation, (iv) other possible enterprise law instruments (such as joint venture agreements, corporate arrangements, etc.) that can be used to foster technology transfer. Panelists reached consensus on the difficulties involving technology transfer agreements and acknowledged that several aspects of these agreements are neglected by the law. Despite these difficulties, it was concluded that there is room to boost innovation through contract regulation.

Moderated by Prof. Calixto Salomão Filho (University of São Paulo Law School, Brazil), the third panel of the Conference discussed the possible role of competition law in promoting innovation for sustainable technologies in Latin America. The panel was attended by Prof. Lucia Helena Salgado (Faculty of Economics of the State University of Rio de Janeiro), Prof. Ginette Sofia Lozano Manturana (University Externado of Colombia), Prof. Carolina Veas (Catholic University of Chile) and Prof. Vinicius Marques Carvalho (University of São Paulo Law School and Minister of the Brazilian Office of the Comptroller General, CGU).

The following issues of competition law were raised during the panel: (i) competition authorities’ analysis of technology transfer agreements in concentration procedures; (ii) competition authorities’ scrutiny of illicit practices by parties to technology transfer agreements; (iii) the revision of economic efficiency criteria to include sustainability; and (iv) competition policy directed to protect disruptive new entrants from barriers to entry in such markets.

Panelists heavily stressed the complexity and interdisciplinarity of the technology transfer agreements, their relation to patent law and the need of access to its protected goods. They also commented on the disparity between the historical objectives and expectations regarding competition law in general and technology transfer in particular, and the real achievements that have taken place in this field over the last decade. The role that public investment often plays in innovation in Latin America and the requirement of balance among various interests from the competition law standpoint were also topics under discussion. Finally, the panelists argued that there is room for inputs of FRAND licensing to create new solutions, in competition law, for technology transfer agreements.

Juliana Krueger Pela closed the Conference, pointing out its contribution to mapping and deepening the comprehension of the difficulties and challenges involved in regulating technology transfer agreements and promoting innovation in Latin America.

The Conference was well attended and, due to rich exchanges among scholars, market players and regulatory agents, offered strong insights for the debate over the regulatory frameworks to promote technology transfer and regional innovation in Latin American countries.

The IV Annual Conference of SIPLA also marked the inauguration of the Brazilian Observatory of Intellectual Property, based at the USP Law School. The inauguration ceremony was attended by several authorities: Prof. Dr. Celso Campilongo, Dean of USP Law School, Prof. Dra. Ana Elisa Bechara, Vice-Dean of USP Law School, Prof. Dr. Paulo Nussenzveig, Pro-rector of Research and Innovation at USP, Prof. Dr. Marcelo Zuffo, Director of the USP’s Innovation Center – Inova, Prof. Dr. Reto Hilty, Director of the Max Planck Institute for Innovation and Competition and Prof. Dr. Calixto Salomão Filho, Head of the Commercial Law Department at USP Law School.