BRAZIL Law and Practice Contributed by: Ana Paula Affonso Brito and Maria Eduarda de O Borrelli Junqueira, Montaury Pimenta, Machado & Vieira de Mello
and the effects of the decision. However, a judg - ment will be enforced immediately after its pub - lication when it confirms, grants or revokes a preliminary injunction, according to Article 1012, § 1o. V of the Brazilian Code of Civil Procedure. There are two possibilities of enforcement: final, when the decision is no longer appealable; or definite or provisional, when the decision is Regarding patent infringement cases, there are generally two provisions in the decision to be enforced – the obligation to cease the infringement and to pay losses and damages. Regarding the cease-of-use order, the enforce - ment of the decision will be established by the judge, who will set the measures required for the accomplishment of the obligation, in order to fulfil the specific remedy or to obtain relief from the equivalent result. Among the measures established for enforcement, the judge may set a daily fine, search and seizure, and if neces - sary, request the support of police authorities. When it comes to losses and damages, these are assessed during the quantification phase and a professional accountant will be appointed to calculate the final amount due, as explained being discussed on the appeal level. Patent Infringement – Cease or Pay A patentee does not need to pay a bond before a final injunction is enforceable, but where the plaintiff chooses to have provisional enforce - ment of the judgment (while it is subject to appeal), it will be the plaintiff’s responsibility to compensate any losses incurred by the judg - ment debtor should the judgment be reversed, according to Article 510, I of the Brazilian Code of Civil Procedure. in 5.4 Damages . Appeal Process
In Brazil, all appeals will stay the final injunction, unless the preliminary injunction is confirmed in the decision by the trial court judge. In this case, the effects are immediate. However, it is possible to ask for an injunction in the appeal request - ing the suspension of the final ruling, as long as the appellant proves the probability of the appeal being granted, or if there are consider - able grounds to believe there is a risk of serious damage or harm that cannot be overcome. The possibilities of obtaining such stay will depend on the evidence the appellant provides in filing a precautionary measure at the Court of Appeals. 5.3 Discretion to Award Injunctive Relief (Final or Preliminary) The court has the discretion to revert any obli - gation into losses and damages in Brazil. For instance, if the defendant is ordered to cease an infringement under a daily penalty and does not comply with the order, the judge can increase the daily penalty or even order the pledging of an asset or of a current account. Judges can reduce the final amount due based on the reasonability and proportionality of the matter discussed. 5.4 Damages The Lawsuit Under Brazilian law, the injured party in a patent infringement lawsuit can request compensatory damages in addition to obtaining a court order that the infringing practice be ceased. Such damages can be divided into two main catego - ries: (i) moral damages; and (ii) material dam - ages, which include actual damages and the loss of profit. For moral damages, the courts will assess the amount to be granted to the injured party on a case-by-case basis, depending on the financial situation of each party, and reasonableness and proportionality in relation to the injury.
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