BRAZIL Law and Practice Contributed by: Gabriel F Leonardos, Claudio Barbosa and Viviane de Medeiros Trojan, Kasznar Leonardos Intellectual Property
would not automatically stay the injunction granted by the first instance. However, even if interim relief is granted, a stay of the injunction can be requested from the appellate court while the appeal is pending. 7. Appeal 7.1 Special Provisions for Intellectual Property Proceedings The appellate procedure for intellectual property cases follows the standard process outlined in the Civil Procedure Code, with no special provi- sions. 7.2 Type of Review The appeal implies a full review of the facts of the case. In Brazil, lawsuits are often preceded by warn- ing letters, though this is not mandatory. Parties may strengthen their case by hiring independent experts, commissioning technical reports on pat- ent validity or infringement, or obtaining a court- appointed expert’s infringement report through an early evidence procedure. These costs are borne by the interested party and are typically unrecoverable, except for early evidence proce- dure costs, which may be reimbursed in a suc- cessful infringement lawsuit. 8.2 Calculation of Court Fees 8. Costs 8.1 Costs Before Filing a Lawsuit Costs are calculated by each court, taking into consideration procedural expenses and other mandatory fees, which also vary by type of action (eg, a nullity lawsuit or an infringement
lawsuit). Court fees, even though they might be different in each state, are usually low, and seldom exceed USD2,000. Fees for the court- appointed expert usually range from USD10,000 (low complexity cases) to USD65,000 (high com- plexity cases). 8.3 Responsibility for Paying the Costs of Litigation Regarding court fees and expenses for patent litigation in Brazil, the losing party is responsible for reimbursing the winner for all the disbursed expenses incurred in the course of the lawsuit by the winning party, as well as for paying an additional amount as attorneys’ fees for the attorneys of the winning party. In the case of a mixed result (ie, if both parties win in differ- ent and equally relevant aspects of the dispute), such litigation costs (with the exception of the attorneys’ fees) shall be divided between them. If the losing party wins in a less relevant aspect, it shall still be responsible for all the court fees and expenses. In Brazil, contractual attorneys’ fees are not reimbursed by the losing party. If the plaintiff is a foreign plaintiff, they may be ordered to post a bond in Brazilian currency before the court to secure the payment of judi- cial expenses. This bond is usually set in the amount of 20% of the value given to the lawsuit. However, if the plaintiff is successful, this bond is returned and duly adjusted according to the official inflation rates in Brazil. According to item I, paragraph 1, Article 83 of the Brazilian Civil Procedure Code, the bond shall not be required when there is a waiver pro- vided by any agreement or international treaty to which Brazil is signatory.
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