BRAZIL Trends and Developments Contributed by: Claudio Barbosa, Viviane de Medeiros Trojan, Jorge Tinoco and Daniel Leopoldino, Kasznar Leonardos Intellectual Property
judge did not allow all evidence to be assessed, as there were still complex technical issues not clarified. The concurring opinion also under- scored the need to produce expert evidence. Notably, even if the matter relating to the pro- duction of the patented substance within the human body was undisputed by the defendant, the expert should still be called on to assess (at least) the question of patent nullity asserted by the defendant. The appeal was thus granted, and the issue was remanded to the trial court. The second case pertains to a peculiar set of facts under which contributory infringement was asserted. The defendant/appellee is a company dedicated to organising and promoting industry fairs, whereas the plaintiff/appellant is an inven- tor and serial litigator asserting a utility model patent relating to a “curtain disposition” for glass windows. In summary, the plaintiff sought to enjoin the defendant from allowing perceived infringers (who were being separately sued by the plaintiff) from showing the accused prod- ucts in an industry fair organised by the defend-
ant. The plaintiff’s claims failed before the trial court. On appeal, the appellate court stated that the rationale of the trial court was flawed, but the merits of the case were still against the appellant. Originally, the plaintiff’s claims were rejected by the trial court as the plaintiff failed to demonstrate that the defendant directly prof- ited from the acts of infringement (eg, sale and production). The Court of Appeals asserted that the lower court’s judgment was flawed, as it was based on a rationale applicable for direct infringement, not indirect infringement. Next, the appellate court held judgment for the plaintiff due to two facts. • The plaintiff had made an assertion under the “inducement” form of indirect infringement and failed to demonstrate that the defendant had acted in a wanton/deliberate manner. • The plaintiff could not demand that the defendant bar alleged infringers from par- ticipating in fairs until there was “certainty” of infringement. At the time the claims were asserted, actions were filed, but not resolved.
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