BRAZIL Law and Practice Contributed by: Gabriel F Leonardos, Claudio Barbosa and Viviane de Medeiros Trojan, Kasznar Leonardos Intellectual Property
become appellate judges. 20% of the appellate judges shall be chosen from a three-name list formed by attorneys-at-law and public prosecu- tors. The President of the Republic is respon- sible for choosing the Justices of the Superior Court of Justice (from a three-name list provided by the Superior Court itself) and of the Supreme Court (if approved by the Federal Senate). Jus- tices are not required to be career judges. 5.3 Settling the Case The parties may reach an agreement to set- tle the case at any time during the lawsuit. The negotiations can be conducted before the courts or between the parties directly. Further- more, according to the Brazilian Civil Procedure Code, after the plaintiff files the complaint, and unless the plaintiff expressly states that there is no interest in a possible conciliation, the defend- ant will be summoned to appear in a preliminary conciliation hearing/conference, when the judge will try to settle the case. Conciliation hearings can be scheduled at any time by the judge ex officio or upon a request by the parties if a set- tlement agreement is feasible. 5.4 Other Court Proceedings Both infringement and nullity lawsuits can be heard in parallel. Although it is not automatic or even mandatory, infringement proceedings can be stayed pending resolution of a validity or invalidity lawsuit before the federal court. A request for a stay can be made by the par- ties or ordered ex officio by the judge. Such a decision can be challenged by means of an interlocutory appeal to the Court of Appeals. Anti-suit injunctions are not usual in Brazil and foreign anti-suit injunction decisions hardly have an influence on proceedings in Brazil, consider- ing that Brazilian courts tend to be more open to arguments invoking the constitutional right of
access to the courts and to obtain an effective legal remedy.
6. Remedies 6.1 Remedies for the Patentee
The main remedies available for the patentee in infringement lawsuits are search and seizure orders, restraining orders and other kinds of injunctions, plus damages. In Brazil, judges can only order remedies based upon the request of the interested party. The remedies are usually enforced through sanctions, particularly fines, against non-compliant defendants. Periodic deposits by the defendant to a bank account managed by the courts can be ordered as a form of provisional damages to assure that the execution of final damages will be success- ful when the litigation is over. The defendant can also be required to post a bond, which shall be updated on a regular basis. 6.2 Rights of Prevailing Defendants The prevailing defendant is usually entitled to have court fees and other expenses incurred during the case reimbursed, including the fees All remedies admissible by law are available for all kinds of intellectual property rights, regard- less of type. 6.4 Injunctions Pending Appeal If a patent is found valid and infringed at the trial level, infringement plaintiffs generally request the grant of interim relief within the verdict. This allows the injunction granted to be immediate- ly enforceable and the appeal by the infringer paid to the court expert. 6.3 Types of Remedies
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