Direito antitruste e propriedade intelectual: o caso da notificação de contratos associativos como atos de concentração
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2019-01-21
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Porto, Antônio José Maristrello
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The Brazilian 2011 Antitrust Act added to the list of concentration hypotheses that are subject to merger control the so called “associative contracts”. Since this category lacked any legal definition, that provision gave rise to a debate on what kinds of agreements should be submitted ex ante to the Brazilian antitrust authority (CADE), which inspired the issuance of two resolutions to regulate this matter. Out of this background, the present paper discusses if agreements on intellectual property rights fall within such category of “associative contracts” and, consequently, whether the submission of them to CADE would be mandatory. Besides, it also discusses the Brazilian regulation on this topic in view of the international antitrust practice regarding such agreements. In order to achieve these goals, it was verified the pertinent international legislation as well as the Brazilian literature, and it was performed a case law research before CADE. We concluded that, even though Brazil sets forth a category of concentration without parallel in the USA and in the European Union, the current criteria for the submission of “associative contracts” to pre-merger control do not require non-exclusive intellectual property license agreements to be notified to the local antitrust authority, what leaves Brazil in line with such international benchmark.