BRAZIL Trends and Developments Contributed by: Claudio Barbosa, Viviane de Medeiros Trojan, Jorge Tinoco and Daniel Leopoldino, Kasznar Leonardos Intellectual Property
set the tone for the rest of the year: the STF’s 1st Panel unanimously rejected the Bristol-Myers Squibb’s Constitutional Complaint, related to ELIQUIS’s® patent PTA lawsuit, stating that any extension of the validity of patents would require objective criteria laid down by law. That said, the answers offered by the courts still miss the point. The perception that only the lawmakers could offer a PTA solution that does not harm the competition overlooks the multi- tude of contexts in which a prompt solution by the judiciary is the only appropriate option. For example, there are many PTA lawsuits regard- ing patents that are years away from entering the public domain – and for which a timely and deserved term compensation will certainly not bring any uncertainty to the market. There is also no denying that the BRPTO has unjustifiably delayed the granting of hundreds of patents, and that to this day, this issue has not been fully solved. In addition, the PTA bills made no significant legislative progress during 2024. This context, combined with the unfortu- nate absence of a satisfactory response from the courts, may explain why, no matter how chal- lenging the current legal scenario may be, patent holders seem to remain resilient in their search for a timely and fair solution. However, besides perseverance and competi- tion-based arguments, the trend for 2025 might be exploring new venues for the PTA litigation. The first PTA lawsuits are starting to be filed before the federal courts in Rio de Janeiro. Fur- thermore, Novo Nordisk is attempting to bring OZEMPIC’s patent PTA discussions to the Superior Court of Justice (STJ) – although this endeavour has run into obstacles so far.
Not only may these strategies enable these par- ties to escape the unfavourable case-law, but they also open the opportunity for new favoura- ble interpretations and developments. It remains to be seen whether these innovations will be enough to change the misguided path that these lawsuits have taken or further reinforce the sta- tus quo. Anti-suit injunctions reaching Brazil: Brazilian preliminary injunctions and foreign litigation Surprisingly, a relevant discussion for Brazilian Patent Law pertains to a recent decision from the United States. As is known, SEP litigation is conducive to worldwide litigation. This context provides fertile ground for anti-suit injunctions and other forms of transnational remedies for SEP litigants. That is precisely what is seen in Lenovo v Eric- sson. In summary, Lenovo (implementer) and Ericsson (patentee) are exchanging blows in a worldwide litigation pertaining to 5G-related patents. After securing preliminary injunctions against the implementer both in Brazil and in Colombia, Eric- sson was targeted by Lenovo in the US District Court for the Eastern District of North Carolina with a request for an anti-suit injunction. Initially, the district court denied Lenovo’s motion for the anti-suit injunction due to the perceived lack of the “dispositive requirement” under Microsoft v Motorola (696 F.3d 872; 9th Cir 2012). The imple- menter appealed to the US Court of Appeals for the Federal Circuit (CAFC). In appeal, the CAFC vacated the trial court’s denial of the anti-suit injunction and remanded the issue to the district court. The most pressing issue on this decision stems from whether the US litigation would meet the
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