Although the amount of patent litigation in Brazil is far from the level of litigation in the US, patent infringement actions are very common in the jurisdiction.
Such actions are the most effective measure against infringers, since preliminary injunctions are widely available. This makes Brazil very attractive as an additional battlefield for worldwide patent disputes.
Brazil has a truly independent judiciary system, and judges are doing their best to enforce the rule of law. In contrast to other BRICS countries, there is no bias against foreign companies. A great number of infringement actions initiated against local companies are filed by foreign entities, and their chances of success are basically the same as those of any other plaintiff.
In comparison with the US, the standards for obtaining injunctive relief in Brazil are much lower than one might expect as, for instance, there is no need to give notice to the defendant, and the parties are allowed to have ex parte in chambers meetings with the judges, meaning that plaintiffs are often able to obtain preliminary injunctive relief even before the defendants are served with the summons. In certain places, for example, Rio de Janeiro, plaintiffs are able to obtain injunctions more often than not.
Moreover, obtaining preliminary injunctive relief is possible even if the asserted patents cover standard-essential technologies, as in Vringo v ZTE and Ericsson v TCT. In both cases, the defendants were prevented from manufacturing, using, selling, offering and importing the infringing goods in Brazil. A preliminary injunction may also include search and seizure measures or orders for the defendant to present copies of contracts and other relevant documents, as well as notifications to third parties and to customs authorities to make relevant information about their dealings with the defendant available.
Generally, to obtain injunctive relief, the plaintiff must present sufficient documentary evidence to establish (i) the likelihood of eventually prevailing on the merits and (ii) that the result sought with the lawsuit could be frustrated or harmed if an injunction is not granted (i.e. the plaintiff must establish that granting the preliminary injunction is an urgent matter). Alternative ways of obtaining preliminary injunctions occur when the plaintiff is able to establish that the defendant is presenting defences and objections in an abusive way, or that the defendant is trying to delay the proceedings, or if the defendant is not able to create reasonable doubt regarding the facts alleged by the plaintiff.
Additionally, in order to maximise the chances of obtaining an injunction, it is usual for plaintiffs to present several technical opinions from well-known local and foreign experts, normally professors teaching at renowned universities, in support of their arguments.
In a nutshell, the lower standards for obtaining preliminary injunctive relief make Brazil a very favourable battleground to enforce patent rights in global litigation. This is an opportunity for non-practising entities (NPEs) and a substantial risk for corporations facing infringement claims.
Daniel Legal & IP Strategy
Av. República do Chile,
230, 3rd Floor
Centro, Rio de Janeiro
Tel: +55 21 2102 4212