When a technological dispute explodes inside a company – a falling-out between partners, the contentious departure of a head of R&D, a competitor launching an “identical” product in record time – one expression tends to dominate the conversation: “they broke our patent”. The next question comes just as quickly: is this “only” a commercial dispute, or has it already become a criminal matter?
It is precisely at this point – when intellectual property is in crisis and senior management needs to understand when patent infringement becomes a crime in Brazil – that boards and executives must distinguish between damage that can be repaired in civil or regulatory proceedings and situations that may evolve into criminal liability for individuals and for the company itself.
Intellectual property in crisis: when patent infringement becomes a crime in real life
The first distinction is less intuitive than it seems. Most disputes involving patents, trademarks, industrial designs and software are resolved in the civil and administrative spheres: injunctions to stop use, damages claims, actions for nullity, urgent measures to remove products from the market. In many scenarios, even if executives talk about “breaking patents”, what is really at stake is an infringement of industrial property rights under Brazilian law, with primarily financial consequences.
The starting point remains technical: checking whether there is a valid patent, whether it was correctly filed with the Brazilian Patent and Trademark Office (INPI), whether the object is actually protectable, and whether the alleged infringement does not fall into the public domain or some other regime (such as trade secrets). Basic materials published by the INPI help structure this analysis by clarifying terms, scope of protection and types of patents. Without that foundation, discussing when patent infringement becomes a crime in Brazil is, at best, premature.
The line begins to shift when the story moves from a market dispute to an account of deliberate appropriation of technology, industrial espionage, systematic violation of confidential information or fraudulent contractual schemes designed to disguise copying. That is when an intellectual property crisis enters the radar of public prosecutors and specialized police units under Brazilian Criminal Law.
From civil dispute to criminal offense: when patent infringement becomes a crime
From the criminal-law perspective, not every patent violation attracts attention. What triggers criminal interest is a combination of factors:
– qualified intent – mere carelessness is not enough; there must be evidence of a conscious decision to appropriate someone else’s technology;
– scale of harm – relevant impact on the market, disruption of fair competition, substantial loss for the victim;
– and, above all, misappropriation of trade secrets and confidential business information in a context of trust.
International literature on trade secrets usually defines them as confidential information that provides a competitive edge, is known only to a restricted group and is protected by reasonable confidentiality measures. When a former executive walks out with drives full of formulas, algorithms, client lists and pricing strategies, we are no longer merely discussing patent infringement: we may be facing criminal unfair competition, misappropriation of trade secrets and, in some contexts, even organized activity if the conduct fits into a wider scheme.
For senior management, the central question is therefore not only whether there has been a technical infringement of an industrial property right. It is whether the conduct – as it was planned, repeated and documented – reveals a conscious project to appropriate someone else’s intangible assets, exploit them at scale and conceal that appropriation through sham contracts, shell companies or carefully designed structures. That is the passage from civil controversy to organized intent that turns patent infringement into a crime in Brazil.
Intent, scale and trade secrets: what criminal law actually looks for
When the discussion reaches the criminal arena, three axes tend to guide how authorities view the case.
First, intent. It is very different to discover, after months of internal development, that a solution happens to be close to a third party’s patent, and to copy that patent knowingly while internal opinions warn of the legal risk. In the latter scenario, e-mails, board minutes, presentations and legal memoranda become evidence not only of knowledge of the protection, but of a conscious decision to violate it.
Second, scale. Criminal law does not concern itself with trivialities. The appropriation of technology in sectors such as pharmaceuticals, embedded software, telecoms or agribusiness may represent billions of reais in market value, destruction of technological barriers and artificial elimination of competitors. In heavily regulated sectors, “breaking patents” can even affect public health or the safety of critical infrastructure.
Finally, trade secrets. In many crises, it is not the patent that sits at the center of the dispute, but the body of information that was never patented precisely in order to remain secret: process know-how, production parameters, synthetic routes, datasets, pricing models. The WIPO Guide to Trade Secrets and Innovation offers a strategic and legal overview of how to identify and protect trade secrets in the innovation ecosystem. When a company can show that it has taken reasonable steps to protect those assets, deliberate violations tend to gain much greater weight in Brazilian Criminal Law.
How should a company react when it suspects that patent infringement has turned into a criminal case?
Faced with a serious intellectual property conflict, the worst reaction is to do everything at once: send a cease-and-desist, file civil suits, brief the press and, at the same time, lodge criminal complaints with no coordination of facts or evidence. In sophisticated crises, the path is usually the opposite.
The first step is to reconstruct the technical asset allegedly infringed: which patent, registration or secret is at stake; what is its scope; since when has it been protected; how has the company documented that asset over time. In parallel, it is essential to conduct a structured internal fact-finding exercise, often framed as a defensive investigation, to understand the role of former partners, executives and suppliers in the chain of events: was there deliberate copying, authorized access followed by diversion, breach of confidentiality or non-compete clauses?
Only then does it make sense to consider opening a criminal front – whether by filing a complaint or, on the opposite side, responding to a police report already filed by the counterparty. In both roles, the same warning applies: one must view the whole board before taking the first formal step.
In the intellectual property context, that means assessing whether the criminal route is truly necessary, which individuals will be exposed, what evidence exists today – and what evidence may surface tomorrow – and how all of this interacts with ongoing civil or arbitral proceedings. The company that litigates everything immediately may find, later on, that it has produced precisely the missing evidence for a more aggressive criminal charge.
A practical example: from “patent complaint” to criminal charges for unfair competition
Imagine a Brazilian biotechnology company that has spent years building a portfolio of patents and trade secrets around a high-value agricultural input. A key director, responsible for research, leaves in the midst of a complex succession dispute and, months later, appears as a partner in a new company that launches a product with very similar performance, on a timeline that is technically improbable for independent development.
At first, the original company reacts with a mix of civil measures: an action to stop patent infringement, technical expert evidence, urgent relief to remove the rival product from the market. During the proceedings, however, evidence emerges that the former director copied entire databases before leaving, took lab notebooks, replicated internal protocols and rehired, in the new company, the same chain of strategic suppliers.
From that point on, the analysis is no longer a generic discussion of “patent infringement becoming a crime in Brazil” as a slogan, but a concrete debate about deliberate misappropriation of trade secrets, unfair competition and coordinated exploitation of someone else’s technology. The company that has built solid documentation, protected its secrets and acted methodically can then sustain a robust criminal narrative – or, if it sits on the opposite side, defend itself by demonstrating that it developed its technology independently, on a timeline compatible with the project’s complexity.
Conclusion: an intellectual property crisis calls for a criminal-law lens, not just a patent number
The message for senior management is direct. In many cases, speaking of “breaking patents” simply means there will be a tough, but essentially civil, dispute over who may exploit a given technological asset. But as qualified intent, economic scale and conscious diversion of trade secrets enter the picture, the crisis ceases to be the exclusive domain of IP litigators and becomes a central topic in Brazilian Corporate Criminal Law.
Recognising this transition – and acting before it consolidates – is a core task for those who govern companies exposed to innovation, global competition and regulatory scrutiny. The decision to treat the matter as a “mere patent dispute” or as a full-blown criminal crisis demands method, serious internal investigation and coordination across legal fronts. In such contexts, improvisation is almost always the enemy of a good defense.
