Created in 2004 and reformulated in 2016, the Innovation Law (Law 13,243) has as its main function to create a safe environment for collaboration between companies, research institutions and the government. More than just a set of rules, the legislation represents a strategy to ensure that Brazil can transform knowledge into more effective economic development and public policies.
For the Legal Consultant of the Agribusiness Research Development Foundation (Fundepag), founding partner of Silva Ribeiro Advogados Associados, Doctor and Master from PUC/SP and Professor of Civil Procedure at PUC-SP/Cogeae, Leonardo Ribeiro, the law allows, in a solid way and secure, a partnership between several actors, such as public bodies, public research institutions, private companies and third sector organizations, so that everyone can seek innovative solutions.
According to the lawyer, one of the merits of the law is to break with the idea, still common, that contracts with the government are always unbalanced and bureaucratic. “There is a certain fear of private institutions in allying themselves with the government. The logic that one has, and that is wrong, is that these partnerships bring abusive clauses. more balanced, more horizontal”.
On the other hand, the prosecutor of the State of São Paulo, coordinator of the Thematic Nucleus of Intellectual Property and Innovation at PGE/SP, Master in Economic Law, Doctor (PH.D) in Administrative Law, Rafael Carvalho de Fassio, highlights that innovating is more than a competitive differential: it is a necessity. “Innovation is not something we do because it is cool. Innovating is a survival strategy. For the company, it is what allows you to stay in the market; for the state, it is a tool for growth and development”.
Fassio recalls that the legislation came about the perception that traditional administrative law did not offer adequate mechanisms for partnerships aimed at innovation. “Almost nothing in the law was impossible to do before. What it did was to facilitate, simplify and offer legal security, being a response to the inefficiency of the state’s traditional roads,” he notes. For him, the main premise of the legislation is precisely the partnership. “No one grows alone. The private sector needs the intellectual capital of public institutions and the state needs the investment and agility of companies. The innovation law tries to facilitate this encounter.”.
In practice, for a company interested in innovating, the first step is to identify which pain you want to solve, be it a product, a service or a process. From there, the legislation makes it possible to establish partnerships with public or private research institutions. “The important thing is that all these actors are available and the law brings the mechanisms for partnerships to take place safely”, says Leonardo Ribeiro.
These collaborations can generate solutions that, in addition to meeting market demands, become a shared intellectual property, contributing to generating revenue, strengthening the scientific ecosystem and benefiting society..
Controls and Legal Security
Although it brings more flexibility, the Innovation Act also provides for control and monitoring mechanisms. “She proposes shelf legal instruments to formalize partnerships. There is legal control, execution control, during the validity of the partnership, and, in the case of use of public resources, the rendering of accounts”, explains Ribeiro.
According to the prosecutor, control is a delicate topic, especially in public administration. “The public manager, for fear of accountability, often avoids innovative paths and reproduces already known practices. The law helps to reduce this fear by offering legal certainty for more daring actions”.
The challenge, according to experts, is cultural. “It is necessary to have intellectual humility. The company needs to recognize the value of the knowledge that is in the public sector and the State needs to understand the importance of private investment for research..
Artificial intelligence and innovation: an inevitable convergence
The recent popularization of Artificial Intelligence (AI), especially with tools such as ChatGPT, has brought the debate on innovation closer to audiences that were not previously included in this context. For experts, this movement can be decisive to broaden the understanding of the importance of the Innovation Law.
“Artificial intelligence got much closer to us. When ChatGPT was socialized, everyone started to discuss what would be the impact of this technology on health, employment, law, journalism. This debate left the academic environment and became part of everyday life. innovation to understand how these advances directly impact our lives”, explains Fassio.
According to the prosecutor, realizing that technologies such as AI are already transforming the way people work and make decisions, companies and institutions begin to seek with more interest the legal instruments that make it possible to make innovative projects viable, and it is at this point that the Innovation Law plays a fundamental role..
Leonardo Ribeiro, who also researches the topic at an academic level, shares the same vision. “Artificial intelligence is innovation in the veins. It came to revolutionize our relationship with the world, with our jobs and with everything we do”, he says. Although we are still, according to the lawyer, dealing with what is called “weak artificial intelligence”, that is, systems specialized in specific tasks, without autonomy or consciousness, the transforming potential is already evident. “When we move towards a strong artificial intelligence, then it will be a revolution. Today, tasks that would take days for a human being to perform are resolved in seconds. But it is necessary to know how to use this tool well, because it, in fact, changes everything”.
In the experts’ view, artificial intelligence is not only an ally of innovation, but will be increasingly central in the processes of research, development and formulation of public policies. “It will be a very important partner for those who want to innovate, both in the public and private sectors”, predicts Ribeiro.
intellectual property, legal security and balance between partners
One of the most sensitive topics when it comes to innovation is the management of intellectual property. According to Rafael Fassio, it is precisely at this point that the Innovation Law promotes significant advances, offering clear rules to protect creations and ensure a fair sharing of rights among those involved..
“When we deal with intellectual property, we talk about the protection of a creation that is often the result of collaboration between two or more parties, whether public, private or both. the prosecutor.
In addition, he points out that negotiations need to provide for confidentiality clauses at the outset. “It is important that the parties sign a secrecy term at the beginning of the negotiation. This protects both the public and the private sector and allows for a more frank conversation, protecting any industrial or strategic secrets that may be involved in the process”.
Leonardo Ribeiro reinforces that this type of protection is not only legitimate, but necessary, including for the public sector. “There was an old prejudice that the State could not work with confidential information, because everything it does should be public. But this is a mistake..
Another paradigm that the law helps to break is about the idea that the State must always hold most or all the rights to the results of a partnership. The logic is now of horizontal negotiation, in which there is no automatic prevalence of the State over the private partner, and each one receives as much as his effort..
According to experts, the legislation even allows the entire intellectual property to stay with the private partner, when this makes sense. “The law recognizes that each project has its particularities. It authorizes the division to be adjusted to the reality of the partnership, without generalist impositions”, explains Fassio.
Transparency is also an important pillar for the success of these collaborations. “After creation is finalized and brought to the market, it is essential to maintain a constant exchange of information between the partners. royalties And everyone needs to know what is being done with the product or technology developed. Without this, relationships can wear out and even result in complex legal disputes”, highlights the prosecutor.
Likewise, Ribeiro adds that the Innovation Law guarantees that the public researcher can also receive for the fruits of his work. It clearly establishes the possibility of remuneration, division of royalties and commercial exploitation, both for the public and for the private.
The change of culture that the law stimulates, valuing mutual trust, legal certainty and the recognition of proportional effort, is, for experts, a decisive step towards a more fertile environment for innovation in Brazil.
ignorance and bureaucracy still hamper the application of the innovation law
In addition to the legal and institutional obstacles, two central obstacles still compromise the full effectiveness of the Innovation Law in Brazil: the lack of knowledge on the part of the actors involved and the excessive bureaucracy that permeates the public sector.
“There is a lack of knowledge on both the public and the universities and research institutions. Often, when we present the law in lectures, people are surprised; ‘Wow, can we do all that?'” says Fassio. According to him, this estrangement reveals a profound gap in the communication of the legislation and in its practical appropriation by public agents.
Bureaucracy, in turn, also imposes itself as a recurring latch. The so-called “pension of pens”, the decision-making paralysis caused by the fear of public managers of innovating without clear legal support, makes many administrations continue to operate with the same instruments as always, even when they are obsolete. “The manager prefers to use what he knows, what he has been doing for 20 years, to run the risk of answering for something new”, explains Fassio.
To try to get around this scenario, initiatives such as the Legal Framework Toolkit of Science, Technology and Innovation, developed by the São Paulo State Attorney’s Office, have offered practical solutions. With the proposal to simplify, the project brings together model documents and step-by-step guidelines for the safe application of the legal instruments provided for in the legal framework, functioning as a kind of “legal tutorial” for public managers.
“We started with 10 documents in 2021, today we already have 12 and we are going to expand to 15. It is a project that has become a national reference and has been used by other states and institutions”, highlights the prosecutor. The initiative is also being internationalized with bilingual versions (Portuguese-English and Portuguese-Spanish), with the support of the Inter-American Development Bank (IDB) and Brazil Lab..
Even so, there are structural obstacles that make it difficult to standardize procedures. As the lawyer Leonardo Ribeiro recalls, there is a significant disparity between the instruments used in different spheres of government. While the toolkit is widely used in São Paulo, at the federal level, different models still prevail, more complex and that do not dialogue directly with the state-owned companies..
This normative divergence ends up generating legal uncertainty for public and private entities that want to establish partnerships in science, technology and innovation. “The more pre-approved models we have, the better. This brings security both to the payer of expenses and to the entrepreneur who wants to invest”, reinforces Ribeiro.
support foundations as a strategic link
Present in several innovation projects, support foundations, such as FUNDEPAG, fulfill a strategic function by operationalizing the actions, hiring staff and managing resources more quickly than the direct administration.
“The institutions that have supporting foundations are precisely the ones that apply the law the most. This is an empirical fact, not an opinion”, emphasizes Fassio. The performance of the foundations allows to circumvent, in part, the slowness of traditional administrative processes, especially in areas such as supplies and financial management of projects..
Despite this, both public and private sector representatives need to adjust their expectations. “The entrepreneur needs to understand that when contracting with the State, it is not possible to impose the rules of the private sector. There is a set of specific rules that guarantee isonomy and control”, ponders Ribeiro. For him, the search for a middle ground, with greater understanding and flexibility on both sides, is necessary to unlock the partnerships.
Although the advances are real, there is a long way to go. The standardization of legal understandings, the greater dissemination of models such as the toolkit and the strengthening of supporting foundations are key parts to make Brazil a more favorable environment for innovation. “Innovation is something fast. And the government often has no structure to keep up with this speed..
