BRAZIL Law and Practice Contributed by: Ana Paula Affonso Brito and Maria Eduarda de O Borrelli Junqueira, Montaury Pimenta, Machado & Vieira de Mello
In other words, the judge may request a guar - antee from the patentee for granting an injunc - tion based on the judge’s sole discretion. There are many situations in which this payment is not required from the patentee, as the conditions for granting injunctions are the following: (i) likeli - hood of the plaintiff arguments; and (ii) risk of irreparable harm. If the guaranteed bond is ordered by the court, however, it must remain in effect until the conclu - sion of the lawsuit, at least until the judgment on the merits is issued. If the plaintiff’s arguments are accepted in the final decision, the security deposit can be claimed by the plaintiff. In Brazil, there are no regulatory authorities that participate in this guarantee which, when due, will be charged solely to the patentee. Preliminary Injunction A preliminary injunction is enforceable from the day the defendant is informed about it by ser- vice. The parameters and enforceability terms of preliminary injunctions may vary, however, depending on the judge’s decision. The timing for service will depend on the court’s office backlog, as a writ of summons needs to be issued and addressed by registered mail to the defendant or handed in by the clerk of the court, which are the two possibilities of service, according to the Brazilian Code of Civil Procedure. Preliminary injunctions remain in effect while the lawsuit is pending but may be revoked or modified at any time. Except for very specific situations, a preliminary injunction remains in effect during the period in which proceedings are stayed (Section 296 of the Brazilian Code of Civil Procedure).
The judge may order the measures deemed nec - essary to enforce a preliminary injunction and such parameters may vary depending on the case (Section 297 of the Brazilian Code of Civil Procedure). If requested by the judge, the patentee may have to pay a bond before the preliminary injunction is enforceable and such amount will depend on the amount in dispute, to be set at the judge’s sole discretion. A preliminary injunction is also called a “provi - sional remedy” and may be based on urgency or evidence. A provisional remedy based on urgen - cy, of a preventative nature or as a preliminary satisfaction of judgment, may be granted prior to the filing of the claim, or incidentally. Most preliminary injunctions claimed in pat - ent infringement cases are requested with the infringement or nullity lawsuits, and are therefore part of the claims and not part of another lawsuit. An interlocutory appeal may be filed against the decision granting the preliminary injunction/pro - visional remedy within 15 days from the confir - mation of the defendant’s summoning. It must be addressed to the Court of Appeals. 5.2 Final Injunctive Relief Confirmation or Revocation of Preliminary Injunction After the issuance of a final decision on the mer - its, the preliminary injunction can be confirmed or revoked. Where it is confirmed, it will be trans - formed from a preliminary injunction to a definite injunction or relief. From the publication of the decision on the day of service, the parties can file an appeal addressed to the Court of Appeals within 15 business days. The appeal filed against the final judgment will suspend the proceedings
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