BRAZIL Trends and Developments Contributed by: Claudio Barbosa, Viviane de Medeiros Trojan, Jorge Tinoco and Daniel Leopoldino, Kasznar Leonardos Intellectual Property
“dispositive requirement” (ie, the domestic suit may resolve – be dispositive of – the entire for- eign action). Briefly, the CAFC’s rationale may be summarised through this snippet of the opin- ion: “The FRAND commitment itself is the same as between the instant suit and the Colombian and Brazilian proceedings, and just because tri- bunals in those countries might differ on their resolution of the same issues [...] does not mean that the issues are not the same for purposes of the threshold requirement in the foreign-antisuit- injunction framework”. Although the CAFC did not rule on the oppor- tunity to issue the anti-suit injunction sought by Lenovo, the judgment gets a couple of points across. • Regarding FRAND commitments, issues of patent law should always be considered alongside issues of contract law. • Anti-suit injunctions may be a proper path- way of enjoining a patentee who has not (yet) demonstrated his/her compliance with FRAND obligations from asserting their pat- ents through injunctive relief abroad. • Differing interpretations between national and foreign courts regarding the same points of fact and law is insufficient to rule out the pos- sibility of issuing an anti-suit injunction. This stance from the CAFC calls into question whether Brazilian SEP injunctions will continue to contribute towards global settlements regard- ing SEPs. Brazilian courts (especially the Rio de Janeiro State Court) are widely known as a par- ticularly favourable venue for SEP plaintiffs, who can attain preliminary injunctions at a higher rate when compared to foreign courts. The CAFC’s opinion in Lenovo v Ericsson is an early indi- cation of acceptance towards the issuance of anti-suit injunctions in SEP cases. If this stance
is taken to its most extreme conclusions, SEP litigants subjected to interim relief in Brazil (and elsewhere) may seek US courts to carry on fight- ing the imposition of interim injunctions against them. Talking before enjoining: court hearings before issuing preliminary injunctions Patent litigants in Brazil often request interim injunctive relief. Due to the crescent number of cases brought to national courts, some of the most common venues for patent litigation are finding new ways of assessing the plea for preliminary injunctions. Specifically, the CPC establishes three conditions for interim relief to be granted: • there is danger for the plaintiff if the relief sought is delayed; • there is a likelihood that the plaintiff’s claims will succeed; and • the effects of the relief sought must not be irreversible for the defendant. From the listed requirements, the “likelihood of success” criterion poses the highest bar for plaintiffs to clear. To address this issue, some courts are starting to schedule preliminary hear- ings to discuss the patentee’s claims and the technical defence of the accused party. Rio de Janeiro’s 6th Trial Court of Business Law is one of the courts to adopt such proceedings. Usually, in patent infringement cases, after the parties present their statement of claim and defence, a court expert is appointed, and an examination of the accused product is conduct- ed. The long timeframe between filing the initial complaint and the end of examination (which could take upwards of a year) places judges in an uncomfortable position to rule on interim injunctive relief. The conduction of a preliminary
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