BRAZIL Law and Practice Contributed by: Eduardo Hallak, Juliana Neves, Jorge Tinoco and Lívia Dias, Licks Attorneys
• the PI request did not meet one or more of its requirements; and • the party targeted by the preliminary injunction is exposed to urgent and potentially irreparable harm if the stay is not granted. 5.2 Final Injunctive Relief Final injunctions are enforceable from the publication of the decision that issues the relief. The date of pub ‑ lication also marks the start of the 15-day deadline for filing an appeal (counted in business days). Generally, final injunctions are immediately enforce ‑ able after the publication of the decision. If the court recognises that compliance with the injunction will involve significant effort, the decision may stipulate an additional timeframe for compliance with the injunc ‑ tive order. An infringer that was targeted by an injunction is expected to comply with the court’s order immedi ‑ ately. If the infringer fails to comply with the injunctive order, courts may impose daily fines to encourage compliance. Should the party fail to comply with the court order, other harsher measures may be imposed (eg, seizure of assets). It is possible to attain a stay of the final injunction by filing an appeal. In most cases, the act of filing an appeal will automatically stay the final injunction. Nev ‑ ertheless, if certain conditions are met (eg, if the trial court’s verdict confirms a PI that was awarded before ‑ hand), the final injunction is immediately enforceable even if an appeal is filed. If the final injunction is immediately enforceable, the infringer may file a request for the appellate court to lift the injunction throughout the pendency of the appeal. In this scenario, the infringer must demonstrate that: • their appeal is likely to succeed; and • the injunction’s effects are potentially irreversible or pose risk of grievous harm. 5.3 Discretion to Award Injunctive Relief (Final or Preliminary) Unlike other jurisdictions, if a patent is found valid and infringed in Brazil, an injunction is the appropriate
remedy provided by statute. Unless the patent has expired by the time infringement is found, a Brazilian court is expected to award injunctive relief. In very rare cases, PIs have been substituted in favour of the payment of hefty court bonds or periodic court deposits based on sales of the accused product. Nev ‑ ertheless, if a court issues a final ruling for infringe ‑ ment, a final injunction is expected. 5.4 Damages Two forms of damages are allowed under Brazilian law: • actual damages; and • moral/reputational damages. Both forms of damages are often requested and awarded in intellectual property life sciences cases. Punitive/enhanced damages (eg, wilful infringement) are not allowed. Article 210 of the BPS designates that actual damages must be calculated according to whichever of the fol ‑ lowing three criteria is most beneficial to the patentee: • the amount the patentee would have accrued if infringement had not occurred; • the amount won by the infringer through the infringing activity; or • the amount the infringer would have paid to the patentee as a reasonable licence. There are no treble damages or wilful infringement in Brazil, nor punitive damages; therefore, indemnifica ‑ tions are usually in low amounts that are not sufficient to tackle the actual damages supported by the paten ‑ tee due to the infringement acts. On the other hand, moral/reputational damages are not based on strict parameters. Judges have broad discretion to set these awards based on the finan ‑ cial situation of each party and the extension of harm caused by the infringing acts. After there is a finding of infringement, the prevailing party may initiate a new proceeding to calculate the appropriate damages award. The court then appoints
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