BRAZIL Law and Practice Contributed by: Eduardo Hallak, Juliana Neves, Jorge Tinoco and Lívia Dias, Licks Attorneys
Moreover, while some appellate courts have special ‑ ised judges, most Brazilian courts do not. For a more thorough discussion of this issue, see 1.18 Court Arbiter . 7.3 Special Provisions Claims related to IP follow the specific procedures set out in the BPS, for industrial property claims, or Statute #9,610/98 (the Copyright Statute) if the claim relates to copyright. If there are no special provisions in these statutes, intellectual property claims are pro ‑ cessed under the general rules of the CPC, if it is a civil claim, or the CPP, if it is a criminal claim. 8. Other Relevant Forums/Procedures 8.1 The UPC or Other Forums The most common venue for infringement disputes is the court system. However, parties may also take action before customs authorities, as authorised by Section 4 of the TRIPS Agreement (border measures). Under certain conditions, parties may also take action before the national health authority (ANVISA) to gather information on parties possibly engaging in infringing activity. 9. Alternative Dispute Resolution 9.1 ADR Options While ADR is available under Brazilian Law (see Stat ‑ ute #9,307/96), and there are arbitration chambers specialised in IP (eg, Carb-ABPI, of the Brazilian Intel ‑ lectual Property Association), it is uncommon for IP disputes to go to arbitration or mediation. Moreover, courts may not mandate parties to engage in arbitra ‑ tion but may designate a mediation/conciliation hear ‑ ing.
the sector’s economic, regulatory and technological specificities. CADE may assess such agreements as potentially anticompetitive conduct, particularly where they involve exclusivity, non-compete clauses, sensi ‑ tive co-operation between competitors, or information exchanges. Or, when they entail the transfer of strate ‑ gic assets, such as patents, commercialisation rights, or R&D pipelines, it may view them as merger control matters. CADE also aligns with international practice by closely examining the impacts on future competi ‑ tion and innovation, including pipeline markets, and frequently imposes behavioural or structural remedies in complex cases. Collective redress is available in Brazil if a claim is one that may be made by multiple people who can be joined together to advance that claim in court. Such collective redress is often found in cases related to environmental harm, consumer complaints, and – in some cases – life sciences litigation. Common claim ‑ ants in these cases are public entities (eg, environ ‑ mental protection agencies), consumer welfare organ ‑ isations and other associations. The most common means to advance a claim of col ‑ lective redress is through a Public Civil Action (ACP), as established by Statute #7,347/85. In an ACP, public entities and private associations are able to file claims for moral and actual damages related to collective rights. In the life sciences sector, such harm may include defective or mislabelled products as well as other forms of collective harm that may arise in the life sciences industry, such as environmental harm due to a faulty chemical processing plant. 11. Collective Redress 11.1 Group Claims Specifically in the consumer context, collective redress is also authorised by Statute #8,078/90 (Con ‑ sumer Defence Code – CDC). The CDC authorises individual or collective action in defence of consumers and victims of faulty products for a number of collec ‑ tive claims. In the life sciences industry, these claims may involve, for example, discriminatory practices in the healthcare sector.
10. Settlement/Antitrust 10.1 Considerations and Scrutiny
In Brazil, pharmaceutical and biopharmaceutical settlements and co-operation agreements are sub ‑ ject to heightened antitrust scrutiny by CADE due to
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