ZTE defeats Samsung again as Brazilian appeals court reinstates 5G injunction, declines to give Samsung “free pass to infringe” and hold out

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February 4, 2026

Patents

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Context: ZTE has already scored a couple of very significant court wins over Samsung. It became the first standard-essential patent (SEP) holder to win a UK interim-license appeal (October 31, 2025 ip fray article); through a Munich injunction, it got Samsung to withdraw its complaint with the European Telecommunications Standards Institute (ETSI: October 16, 2025 ip fray article); and last week a U.S. federal judge threw out Samsung’s FRAND (fair, reasonable and non-discriminatory licensing) contract and antitrust case in the Northern District of California (January 30, 2026 ip fray article).

What’s new: ZTE’s winning streak continues. The 14th Civil Chamber of the Court of Appeals of the State of Rio de Janeiro has reinstated a preliminary injunction (PI). ZTE already won a PI more than a year ago (February 13, 2025 ip fray article), but urgency-based (as opposed to merits-based) Brazilian PIs can easily be stayed during an appeal against a bond. Now, however, the appeals court has upheld the PI. The written decision has just been released. The decision criticizes Samsung’s hold-out tactics and finds that a bond would merely serve as a “free pass to infringe” at this stage.

Direct impact: The daily fine has been lowered from R$50,000 (approx. $10K) to R$25,000 (approx. $5K) per day in order to be proportionate. But this ruling by the appeals court ups the pressure on Samsung. An expert report is in the making, and if Samsung loses on the technical merits, the appeals court’s positions on FRAND suggest that the Brazilian patent hammer will then mercilessly come down on Samsung.

Wider ramifications: This is yet another example of Brazilian patent enforcement giving owners of strong patents leverage that can drive deals. ip fray makes a dedicated effort to stay on top of Brazilian patent litigation (SEPs and non-SEPs alike; e.g., Genentech v. Organon & Henlius: January 31, 2026 ip fray article).

Here’s an English translation furnished by ZTE’s lead counsel:

The patent-in-suit is Brazilian patent BR112015017291-1, which covers a critical 256 QAM modulation method essential for 5G network processing. It will expire only in 2033.

It was a 2-1 decision. The per curiam was written by Justice Adolpho Andrade Mello. Initially, Justice Sertã was the judge-rapporteur. But Justice Andrade, who had only the third vote, requested additional time for an in-depth study when the other panel members were leaning toward lifting the injunction in favor of a bond. Ultimately, he won the support of the judge wiht the second vote, Justice Álvaro Henrique Teixeira de Almeida, forming a majority.

Justice Mello submitted his opinion as a dissent, but it became the per curiam. He criticized Samsung’s procedural flip-flopping and held Samsung’s denial of the essentiality of the patent-in-suit to the 5G standard against it in the FRAND context. That is a pattern which has sometimes also been seen in German courts. If a party says it doesn’t use a patented technique, it can run into credibility issues when describing it as conferring market power on the patentee.

The majority opinion holds that a bond does not replace injunctive relief for the purpose of putting an end to IP infringement.

Here are some particularly interesting quotes from the original ruling, along with a machine translation:

Original	Translation
[1] “A tutela inibitória possui natureza preventiva e não pode ser substituída por caução ou garantia fidejussória, sob pena de esvaziamento do direito de exclusividade assegurado ao titular da patente e do ius prohibendi que integra o sistema protetivo.”	[1] “Injunctive relief is preventive in nature and cannot be replaced by security or surety, under penalty of emptying the right of exclusivity ensured to the patent holder and the ius prohibendi that integrates the protective system.”
[2] “A prestação de caução não substitui a tutela específica destinada a impedir a violação de direito de propriedade industrial.”	[2] “The provision of security does not replace specific protection intended to prevent the violation of industrial property rights.”
[3] “A inexistência de recusa injustificada ao licenciamento em condições FRAND afasta a alegação de abuso por parte da titular de patente essencial ao padrão tecnológico.”	[3] “The absence of unjustified refusal to license under FRAND conditions negates the allegation of abuse by the holder of a patent essential to the technological standard.”
[4] “Não se configura perigo de dano reverso, especialmente diante da afirmação da própria agravante de que não utiliza a tecnologia patenteada, inexistindo prejuízo concreto decorrente da ordem de abstenção.”	[4] “There is no risk of reverse damage, especially given the appellant’s own statement that it does not use the patented technology, and there is no concrete harm resulting from the order to refrain from licensing.”
[5] “A declaração de essencialidade de patente ao padrão tecnológico não afasta o direito de exclusividade do titular nem impede a concessão de tutela inibitória, inexistente recusa abusiva ao licenciamento.”	[5] “The declaration of essentiality of a patent to the technological standard does not negate the holder’s right of exclusivity nor prevent the granting of injunctive relief, as there is no abusive refusal to license.”
[6] “A exploração não autorizada de patente causa dano de difícil reparação, sobretudo quando o modelo de negócio do titular se baseia no licenciamento de tecnologias, comprometendo receitas, concorrência leal e incentivos à inovação.”	[6] “The unauthorized exploitation of a patent causes damage that is difficult to repair, especially when the patent holder’s business model is based on technology licensing, compromising revenue, fair competition, and incentives for innovation.”
[7] “O valor da multa cominatória deve observar os princípios da razoabilidade e proporcionalidade, sendo adequada a sua redução para garantir efetividade sem excessos.”	[7] “The amount of the fine must observe the principles of reasonableness and proportionality, and its reduction is appropriate to ensure effectiveness without excess.”

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Counsel

Counsel for ZTE

Licks Attorneys (ip fray firm profile with numerous SEP achievements): Otto Licks, Carlos Aboim, Gabriel Mathias, and Matheus Ramalho.

Salomão Advogados: Luis Felipe Salomão Filho, Paulo Cesar Salomão Filho, and Alice M. Studart da Fonseca.

Belizze & Basílio Advogados: Marcelo Bellizze and Marcus Vinicius.

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Counsel for Samsung

Montaury & Pimenta: Luiz Edgard Montaury Pimenta, Ana Paula Brito, and Maria Eduarda Junqueira.

FCDG: José Roberto de Castro Neves, Gustavo Birenbaum, and Pedro Ivo Bobsin.

Fux Advogados: Rodrigo Fux, Mateus Carvalho, and Thiago Sbano.

Licks Attorneys

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