Da possibilidade jurídica da posse de patentes

Abstract

The main objective of this paper is to question about the possibility of making use of the legal institution of possession in the context of patents, in view of the recent moves of both legal doctrine and jurisprudence, which recognize the judicial protection and the acquisitive prescription of patents. In order to do that, a brief explanation about the patent itself, as it stands today in Brazilian legal system, will be initially made, to then present the doctrinal differences concerning the legal status of this right - if monopoly, real right or a third and peculiar kind of right. Soon after, the possession will be explained - presenting the two most prominent theories which sought to explain it, the subjective theory of Savigny and the objective theory of Jhering - and so will the road taken by the Brazilian law since the Civil Code of 1916 until present time. Then, the controversy about the possibility of possession of rights will be elucidated, showing the opinion of various jurists on the subject. Finally, based on everything that has been explained and using as theoretical framework the objective theory of Jhering, it will be suggested an answer to the question originally submitted, in order to seek a better understanding of the current Brazilian right of possession in view of the evolution of the institution and its consequences concerning immaterial property, especially patents.