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Brazil is a country with an established civil law tradition. Under its statutory provisions, SEPs are treated as any other patent granted by the Brazilian Patent and Trademark Office (BRPTO). There is no special treatment for SEPs, nor any limitations to the exclusionary rights granted to their holder. The Brazilian IP Law (Law 9.279 of 1996) does not require prior negotiation of licences or notice before the filing of a lawsuit seeking the enforcement of a patent. The FRAND commitment may be raised as a defence in patent enforcement lawsuits and if so will be addressed by the courts, being treated as a contractual obligation. In the case of foreign contracts, they will be interpreted according to the law of the country in which the obligations were constituted, and foreign law is treated as a matter of fact by Brazilian courts.
The Constitution of the Federal Republic of Brazil 1988 establishes as fundamental (i.e., cannot be changed or amended) the exclusivity rights of inventors of industrial creations (Article 5(XXIX)). The Brazilian IP Law provides that a patent constitutes the right of preventing unauthorised third parties from using, offering for sale, selling or importing any patented product or process (Article 42). The right to exclude is the essence of the protection conferred by patents in Brazil. The Brazilian IP Law also provides that courts must grant preliminary injunctions to stop patent infringement (Article 209, Section 1), which is the remedy chosen by law to provide effective patent protection, since there are no punitive or enhanced damages available at the end of the lawsuit.
Such preliminary injunctions are often issued based on urgency, but Brazilian courts have also started granting preliminary injunctions based on the merits of the asserted patent and strength of the evidence supporting infringement. In this second scenario, the court will issue a scheduling order at the beginning of the case setting a calendar for the production of evidence, including a court-appointed expert examination. After such evidence is produced, the court will adjudicate the request for injunction. Such proceeding can take as little as three months and usually does not take more than seven months.
The Constitution provides general protection for free competition in Article 170(IV). The Brazilian Antitrust Law (Law 12.529 of 2011) establishes as antitrust violation any conduct that prevents the exploitation of IP rights or amounts to an abuse of such rights (Article 36, Section 3 (XIV and XIX)).
There is no provision under any Brazilian law establishing that the enforcement of an SEP constitutes an antitrust violation or any type of abuse of a dominant position. In fact, there is also no presumption of a dominant position for holders of SEPs.
The Brazilian antitrust authority (CADE) stated its position on SEP enforcement in Brazil in TCT v Ericsson. TCT had filed a representation before CADE complaining that Ericsson was committing antitrust violations, as well as sham litigation, by enforcing SEPs in Brazil. CADE rejected TCT’s claims and found that an SEP enforcement case is a private matter to be resolved in a private dispute, not warranting the interference of the government as it does not harm competition.
It would therefore seem that the facts presented before this authority were linked to a private relationship between the parties, which means that although the defendant’s acts may have impacted the plaintiff’s economic activities and possibly the financials of the company, this is a result of reasonable grounds and arguments and could not be interpreted as infringement to economic order, as it could not lead to anticompetitive effects on the market.[1]
Anothecr recent representation filed before CADE was Lenovo v Ericsson, in which Lenovo and Motorola accused Ericsson of seeking a preliminary injunction in an infringement action to abusively force Lenovo into making excessive and premature payments for the use of Ericsson’s SEPs.
CADE rejected the preliminary injunction request because:
Non-payment for the use of patents is not limited to Brazil. In the absence of a global licencing agreement, [...] the Representatives [Lenovo/Motorola] continue to not pay for the use of the Respondent's [Ericsson's] essential patents. This stance clearly pressures the Respondent to accept less favourable terms, since it currently receives nothing for the use of its patents by the Representatives.
CADE’s staff also noted that:
…the expected way for the Defendant to counterbalance this situation is to file lawsuits for infringement of its patent rights” and concluded that “it is not the role of the Competition Authority to define, even indirectly, the price to be charged between two companies that do not compete in the same relevant market.
Lenovo and Motorola appealed this decision, but the parties settled before the appeal was decided. Nevertheless, the reporting commissioner ordered the opening of a preliminary inquiry for the case to be further analysed. According to the Brazilian competition statute, a preliminary proceeding is launched when “the evidence of violation of the economic order is not sufficient to initiate administrative proceedings” [emphasis added].
Decisions and precedents in foreign jurisdictions have limited persuasive effect in Brazil. Judicial decisions rendered by Brazilian trial and appellate courts in patent enforcement lawsuits are not binding and lawsuits are decided on a case-by-case basis. The great majority of decisions rendered by state courts handling SEP enforcement consider that an SEP does not detract from its holder the right to obtain the injunctive relief provided by the IP Law (Article 209, Section 1).
There are several examples of preliminary injunctions awarded to SEP holders in Brazil. The first-ever infringement lawsuit filed in Brazil regarding SEPs was the TCT v Ericsson case, in which trial and appellate courts consistently granted injunctive relief to the patent holder enjoining the implementer from importing, manufacturing, offering and selling the accused handset devices in Brazil. The same outcome was reached in Vringo v ZTE, in which sales of the implementer’s accused infrastructure devices were banned.
In recent years, the number of SEP enforcement cases filed in Brazil has grown exponentially. Brazilian courts have consistently granted injunctive relief to SEP holders that managed to show strong evidence of infringement and that the implementer was causing irreparable harm (e.g., as a result of hold-out strategies). See, for example:
A notable case is DivX v Netflix, which reached an unprecedented stage for tech patent disputes in Brazil at the end of 2023, when a final decision on the merits was rendered and Netflix was found to have violated DivX’s patent. The Fifth Business Court of the Rio de Janeiro State Court confirmed the preliminary injunction and granted a permanent injunction to – effective immediately – enjoin Netflix from infringing DivX’s patent.
Netflix was ordered to compensate DivX for the material damages equivalent to the unpaid licensing fees, plus a US$4-million fine for contempt of court for failing to comply with the preliminary injunction.
This outcome is critical as it marks the first time that a permanent injunction has been awarded in a tech patent case in Brazil. Implementers usually settle with the patent holder when the preliminary injunction is stabilised or enforced.
DivX is also currently asserting the same patent against Amazon (action filed in 2022), and a court-appointed expert has already concluded a court-ratified report attesting the infringement. Based on this expert report, which found clear evidence of DivX’s patent violation, the Fifth Business Court of the Rio de Janeiro State Court granted a preliminary injunction to enjoin Amazon from infringing DivX’s patent. This injunction was upheld at the appellate level, given that the expert report identified the presence of DivX’s patent elements in the H.265/HEVC standard used by Amazon.
In another significant case, in November 2023, the Third Business Court of the Rio de Janeiro State Court granted Ericsson a preliminary injunction against Lenovo and Motorola in the Ericsson v Lenovo case over two SEPs related to security procedures in 5G networks. The implementers were enjoined from implementing Ericsson’s patented technology on their cellular devices compatible with the 5G standard under a daily fine per act of noncompliance. The injunction was upheld twice at appellate level and remains fully in force.
Similarly, Nokia v Oppo, Nokia filed a SEP infringement lawsuit against Oppo and a preliminary injunction was granted the following day to enjoin Oppo from commercialising smartphones equipped with its speech codec patent – which is essential to the AMR-WB standard – under penalty of a daily fine. The injunction was confirmed twice at the appellate level, and Oppo left the Brazilian market. In January 2024, the parties reached a global licensing agreement.
The above cases highlight Brazil’s growing attractiveness for patent holders and the Rio de Janeiro Appellate Court’s consistency in adjudicating tech patent cases, providing effective protection for patent holders.
In disputes filed by implementers before federal courts seeking to limit the rights granted by SEPs, the decisions confirmed that the law does not discriminate essential patents. According to Federal Judge Márcia Maria Nunes de Barros: “There is no legal provision that the essentiality of a patent has been recognized or declared, the Brazilian PTO must make such a note in the respective register.”[2]
Brazil is a jurisdiction that gives great importance to innovation and IP rights where, since 2012, FRAND commitments are considered as not being an impediment to the grant and enforcement of injunctions and preliminary injunctions in the great majority of the lawsuits seeking the enforcement of SEPs.
As mentioned above, Brazil has no statutory provision setting forth different legal requirements for the enforcement of FRAND-encumbered patents and a FRAND commitment does not prevent the granting and enforcement of injunctions.
Recently, in JVC v TCL, Appellate Judge Ricardo Alberto Pereira of the 15th Chamber of Private Law of the Rio de Janeiro State Court made it clear that the status of a patent as standard essential does not imply a waiver of the right to exclusive use or permit the technology’s unrestricted use by any company without compensating the patent holder. He further emphasised that companies are expected to negotiate licences and calculate royalties according to the FRAND principle, wherein the patent holder agrees to license its technology under fair, reasonable and non-discriminatory terms, while licensees are responsible for bearing the cost of the licence.
A FRAND defence takes place in the context of breach of a foreign contract. An implementer, as a third-party beneficiary, might bring a claim of breach of the commitment between the SEP owner and the standards setting organisation. In this case, the implementer has the burden to prove that the SEP owner was not prepared to grant a licence (i.e., did not make a FRAND offer). Brazilian courts do not apply foreign facts automatically and foreign law (statutory and case law) is treated as a matter of fact. Brazilian courts treat foreign decisions as arguments for persuasion, but they do not broaden the legal requirements for enforcement or the right to exclude established in the Brazilian IP Law. According to the Brazilian antitrust agency and judiciary, enforcement of FRAND-encumbered patents is a private matter.
Injunctions
An injunction is the specific remedy provided by Brazilian law in the face of patent infringement (Article 42 of the IP Law) and SEP cases are no different. The FRAND commitment does not prevent SEP owners from seeking and obtaining preliminary and permanent injunctions. It falls to the implementer to prove that the SEP owner breached its FRAND commitment, but even then, such a breach would not result in a limitation of the SEP owner’s right to exclude.
The Brazilian IP Law (Article 209, Section 1) further establishes that:
The judge may, during the course of the proceedings itself and in order to avoid damage that is irreparable or difficult to repair, provisionally order the suspension of the violation, or of the act that gives rise to it, prior to summons for the defendant, and in case he considers it necessary, order the posting of a cash bond or a fidejussory guarantee.
The Brazilian Superior Court of Justice, which is the highest court in Brazil for matters concerning federal law, has explicitly decided that due to political circumstances in Brazil, an injunction is the only adequate remedy against patent infringement of any kind:
It is notorious that Brazil did not adopt the punitive system of civil reparations. [… Brazil] succeeded in establishing the prevalence of preliminary injunction, aimed at achieving the result equivalent to compliance of the protected right. This is because it is understood that preliminary injunction is the most effective way to protect […] legal interest, since subsequent reparation is not capable of restoring the parties to the real status quo ante. [...] At the same time, it established the judge’s duty to avoid irreparable damages or damages that would be difficult to repair, pursuant to article 209 of the aforementioned law.[3]
This means that a preliminary injunction must be entered every time a patent – including SEPs – is likely to be infringed.
Preliminary injunctions can be issued based on urgency or the established merits of the asserted patent. Recent experience shows that the Rio de Janeiro business courts have been resorting to an efficient procedure to deal with such cases by issuing a scheduling order at the very beginning of the proceedings for the completion of an expert examination. This is to enable compliance with the provisions of Article 209 and allow for the judge to analyse the preliminary injunction request based on a court-appointed expert’s conclusions with more certainty and firmness. Once there is an infringement finding by an unbiased court-appointed expert, the judge can issue an evidence-based preliminary injunction rather than an urgency-based one, grounded on likelihood of infringement.
The IP Law establishes that any patent holder has “the right to recover damages as compensation for losses caused by acts that violate industrial property rights” and that such compensation must “be determined using the most favourable criterion to the aggrieved party”.
However, as there are no punitive or enhanced damages according to Brazilian statutes, the compensation for damages is limited to past acts that could not be prevented with a preliminary injunction – for example, acts of infringement practised before an injunction has been entered or acts practised before the patent was granted. The IP Law provides for compensation of damages caused by infringement while the patent application was being prosecuted by the patent office up to five years prior to the filing of the lawsuit.
Brazilian courts have never been asked to set a global FRAND rate or to declare if an offer is FRAND. SEP infringement lawsuits filed in Brazil seek the grant of the remedy established by the local law – namely, preliminary and permanent injunctions, as well as compensation for past damages.
Brazil is the world’s sixth most populated country and fifth largest smartphone market behind China, India, the United States and Indonesia. As South America’s largest country, Brazil’s population accounts for half of the continent. Combined with a 46 per cent smartphone penetration rate, Brazil is a key market for both app developers and original equipment manufacturers, and numbers are likely to continue to soar in the coming years.[4]
When it comes to Internet use, Brazil is a globally significant leader. Brazil is the country with most Kawai and Google users, and it comes in second in terms of the most Netflix, HBO, WhatsApp and Alibaba users, third with most Temu, TikTok and Instagram users and fourth with most Facebook and Internet users.
In other words, it is in the national interest to ensure legal security regarding the IP sphere as it will further enhance economic interests.
The Brazilian IP Law is consistent about the duties of IP owners and implementers, as well as the availability of injunctive relief as the main remedy against patent infringement. There is no requirement of prior notice to the implementer before the filing of a patent infringement lawsuit. The bifurcated system allows for infringement lawsuits focused on straightforward evidence of patent infringement, in which FRAND contentions may be raised as a matter of defence consistent with alleged breach of a foreign contract.
There are concrete ways for SEP holders to fight hold-out through the remedies available in Brazil. Non-practising entities are not discriminated against, and the importance of innovation fostered by intellectual property is well recognised. In addition, there are no ‘Huawei framework’ requirements or presumptions of dominant positions in relation to SEPs. Infringement of one independent claim is enough for courts to grant injunctive relief, as proven by recent cases.
In most SEP cases infringement is established over the relevant part of the standard. There are no discovery, depositions, cross examinations, hot-tubbing, company personnel involvement or jury trials regarding patent litigation. The decisions are rendered by judges. There are no juries, only bench trials. In invalidity lawsuits, the BRPTO is a mandatory co-defendant and there is no automatic stay of infringement lawsuits, which would be treated as an exception.
With a large middle-class population, a pro-market government and a sizeable domestic market, Brazil already owns one of the largest markets worldwide and is becoming increasingly relevant in global patent disputes.[5]
The Brazilian judiciary’s relevance as venue for patent infringement disputes is swiftly increasing, including the ones dealing with SEP/FRAND contentions. Brazil has continental dimensions and is one of the largest digital markets in the world – as evidenced by the number of searches on Google.com. Brazilian law provides for effective remedies to protect the rights of patent owners, encouraging good faith negotiations leading to settlements.
Below are some recent and relevant cases.
With different approaches that fit different needs, Brazil continues to rise among relevant jurisdictions for effective and time-efficient SEP enforcement. Cases are on the rise – between 2024 and October 2025, 19 SEP cases were filed – as patentees acknowledge the importance of the Brazilian jurisdiction together with global assertion strategies.
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