Brazil possesses vast and dynamic markets in strategic sectors such as information and communication technology (ICT) and life sciences. It has emerged as a key jurisdiction for patent enforcement globally in the last two decades. This prominence is driven by a reliable and efficient legal framework that provides powerful interim and permanent remedies for protecting patent owners’ rights to exclude others. The Brazilian Patent Statute allows patent owners to seek preliminary injunctions, permanent injunctions, and damages to halt and redress patent infringement, making Brazil a key jurisdiction for global patent adjudication campaigns.
Brazil operates under a legal system rooted in the Continental European civil law tradition. Its patent litigation system is bifurcated: Federal Courts hold exclusive jurisdiction over patent invalidity lawsuits, while State Courts are responsible for patent infringement lawsuits. This clear division ensures specialized handling of distinct legal issues. Crucially, both court systems operate independently from the executive branch, upholding judicial impartiality.
A significant factor contributing to the effectiveness and predictability of the Brazilian patent system is its over two decades of judicial specialization in patent matters. This began in 2000 with the establishment of Business Trial Courts in the State of Rio de Janeiro. These courts have become a primary and highly respected venue for patent infringement lawsuits, particularly those involving complex ICT-related technologies. Their accumulated experience in navigating the intricacies of Standard Essential Patents (SEPs) has led to a deep understanding of the technical and economic nuances of these disputes.
Following Rio de Janeiro’s lead, other major states, including São Paulo, Brasília, Minas Gerais, and Rio Grande do Sul, have also adopted judicial specialization for patent cases. This widespread specialization enhances consistency, expertise, and efficiency in handling complex intellectual property (IP) disputes across the country, providing a more predictable environment for patent owners.
Both the Brazilian Patent Statute (Law #9,279/1996) and the Civil Procedure Code (Law #13,105/2015) provide robust mechanisms for the issuance of preliminary injunctions. For a preliminary injunction to be granted, the patent owner must demonstrate likelihood of infringement and the risk of loss or injury to the useful outcome of the lawsuit (irreparable harm or significant damage if the infringement continues). In patent infringement lawsuits, this translates to an immediate judicial order to halt the patent violation.
Decisions from State Courts, particularly regarding preliminary injunctions, are typically rendered at remarkable speed, often within weeks. Furthermore, requests to stay infringement lawsuits pending parallel invalidity proceedings in Federal Courts are rarely granted (less than 15% of the cases in the last 10 years). This procedural efficiency means that a preliminary injunction issued in Brazil, ordering an infringer to cease using and selling the patented technology, can lead to the rapid withdrawal of infringing products from the market. This immediate market impact creates a powerful incentive for the implementer to engage in good faith licensing negotiations, often leading to quicker resolutions than in jurisdictions where injunctions are not available or more complex to obtain.
While powerful, Brazilian preliminary injunctions are not immune to challenge. They can be appealed before the Court of Appeals, which can either uphold or overturn the Trial Court’s decision. To convince both trial and appellate judges, patent owners in Brazil typically present a comprehensive package of evidence. This usually includes detailed expert opinions clearly demonstrating claim construction and infringement, and evidence of previous attempts to offer a patent license agreement. This proactive approach helps establish the patent owner’s diligent efforts to resolve the matter amicably and the necessity of judicial intervention, thereby strengthening the case for injunctive relief.
The most critical piece of evidence for establishing infringement in Brazilian patent litigation is often a court-appointed unbiased expert/patent master review. This report provides a neutral, objective, and comprehensive analysis of the claim construction and infringement claims, addressing questions posed by both the plaintiff and the defendant. The Civil Procedure Code also allows for a simplified expert report, a streamlined initial assessment designed to evaluate an alleged infringer’s compliance with a preliminary injunction, further accelerating the enforcement process and ensuring judicial orders are effectively monitored.
Regarding damages, the Brazilian Patent Statute offers criteria highly favorable to the patent owner, providing three possible options for calculating compensation:
Beyond compensatory damages, statutory damages in Brazil may be interpreted as having a punitive nature. Fines for non-compliance with a preliminary injunction can also be granted, and these can be substantial, sometimes exceeding the royalties typically charged in a patent licensing agreement. This serves as a powerful deterrent against continued infringement and encourages prompt compliance. While the legal framework provides for significant monetary awards, it is worth noting that actual monetary awards for damages are less common in patent infringement lawsuits in Brazil. The goal is often to secure a licensing agreement and/or stop infringement rather than protracted litigation over damages.
Brazil’s appeal as a patent enforcement hub is intrinsically linked to its significant market size and strategic industries. The country is one of the largest markets for smartphones globally, both in terms of manufacturing and user base, making it a critical arena for telecommunications patent disputes, particularly concerning SEPs. The rapid deployment of 5G technology and the burgeoning digital economy further amplify the importance of robust patent protection in this sector.
In the life sciences sector, Brazil presents a particularly favorable legal and market landscape. This is primarily due to Brazil’s publicly funded, free universal healthcare system (SUS), which provides comprehensive healthcare for all Brazilian residents, resulting in a substantial and consistent demand for pharmaceutical products, medical devices, and biotechnological innovations. This vast public system is complemented by a supplementary private health insurance market serving over 50 million users. This dual system creates an enormous market for healthcare innovations. These factors strongly encourage patent owners to file foreign patent applications in Brazil and to vigorously enforce their rights against potential infringers, given the substantial market at stake and the high value of pharmaceutical and medical technology patents.
This confluence of a large, growing market and a robust enforcement mechanism has made Brazil increasingly relevant for global patent disputes. Notably, Chinese and Japanese companies, such as Huawei, IP Bridge, JVC, Mitsubishi, NEC, and ZTE, among others, have actively filed patent infringement lawsuits in Brazil. Their primary aim is to cease infringement, particularly for SEPs claiming voice coding, video coding, and cellular technologies, against unwilling licensees practicing “hold-out,” where implementers delay or refuse to take a license.
Brazil boasts 13 years of extensive experience in SEP and non-SEP ICT infringement lawsuits, with 47 cases having been filed in the country since 2012. These cases have demonstrated remarkable efficiency, settling on average within one year and three months. Licks Attorneys has represented patent owners in all 47 of these assertions, achieving an outstanding success rate: out of 41 preliminary injunction requests decided since 2012, 39 were granted, representing a 95.12% success rate. Six preliminary injunction requests are currently pending judgment by the Court. These compelling results unequivocally demonstrate that Brazilian courts are not only receptive to urgent measures but also create highly favorable conditions for license negotiations and dispute resolution, frequently leading to global settlements that benefit patent owners and resolve disputes across multiple jurisdictions.
The efficiency of the Brazilian patent system in protecting patent owners’ and implementers’ rights, coupled with its encouragement of negotiation, means that lawsuits often do not proceed to a full decision on the merits. For ICT cases, only three decisions on the merits have been issued: two were favorable to patent owners’ interests, and one denied infringement. Crucially, only one case has been settled without a FRAND global licensing agreement, underscoring the system’s effectiveness in driving commercial resolutions and ensuring that SEP owners are compensated for the use of their technology.
Furthermore, the stability of granted patents in Brazil’s Federal Courts is noteworthy. For the 30 patent invalidity lawsuits filed in the last 13 years against ICT SEP and non-SEP technologies, no patent has ever been declared invalid by the Federal Trial Courts of Rio de Janeiro, Brasília, and São Paulo. Requests for Temporary Restraining Orders (TROs) to suspend a patent’s effects were either denied outright or granted for only a short period and subsequently overruled. This consistent judicial upholding of patent validity provides significant confidence to patent owners that their granted rights will be respected and enforced.
The Brazilian patent litigation system has firmly solidified its position as one of the main jurisdictions for filing and adjudicating patent assertions. The combination of a consolidated market for ICT and life sciences, a specialized judiciary with extensive experience in patent matters and a positive track record for patent owners, and the effectiveness of its statutory remedies for safeguarding constitutional patent rights establishes a system that operates with greater speed and efficacy than many other well-established patent systems.
Beyond an efficient judiciary and a growing landscape for patent disputes, Brazil is committed to fostering a mature, innovation-oriented environment through strategic institutional planning. In 2021, the government launched the National Strategy on Intellectual Property (ENPI), a comprehensive initiative setting forth 210 actions to be implemented over 10 years. The ENPI aims to strengthen the patent system and foster innovation, investment, and competitiveness across the nation. tructured around seven key pillars, including patent enforcement, governance, and integration into business strategies, the ENPI actively supports litigation efficiency by promoting legal certainty and the harmonization of enforcement standards. This long-term vision signals a deep governmental commitment to IP.
The Interministerial Group on Intellectual Property (GIPI) coordinates this ambitious strategy, bringing together representatives from federal agencies, industry organizations, and the Brazilian Patent and Trademark Office (BRPTO). Operating under the Ministry of Development, Industry, Trade and Services (MDIC), GIPI plays a pivotal role in aligning public policies and fostering international cooperation. This coordinated approach not only reinforces Brazil’s institutional commitment to patent protection but also signals to global patent holders that the country is actively strengthening its IP ecosystem and creating a more predictable and favorable environment for innovation and investment.
One of the key entities actively participating in GIPI is the Brazilian Association of the Electrical and Electronics Industry (ABINEE), which represents the interests of technology-driven sectors. Ambassador Regis Arslanian, a distinguished partner at Licks Attorneys, is a member of ABINEE’s Superior Council. He recently contributed to the BRICS Business Forum, where he provided insights from the perspective of those investing in R&D and advanced technologies in ICT, life sciences, and other strategic sectors. His active participation exemplifies the strong alignment and collaborative efforts between government, industry, and legal stakeholders in driving innovation and strengthening IP protection in Brazil.
In conclusion, Brazil has firmly established itself as a strategic venue for global patent litigation. This is achieved by combining a large, competitive market with a judiciary that is both specialized and highly responsive to the needs of patent owners. Backed by effective statutory remedies, proven judicial expertise, and a robust institutional framework committed to strengthening patent protection, the country offers an effective and increasingly attractive environment for resolving patent disputes – particularly in, but not limited to, the ICT and life sciences sectors. As Brazil continues this path of IP system enhancement, its relevance as an enforcement jurisdiction is set to grow, making it an indispensable consideration for any global IP strategy.
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