The extraterritorial reach of British courts in patent litigation breaches Brazilian sovereignty and the independence of patents as envisaged by the Paris Convention for the Protection of Industrial Property and the Agreement on Trade-Related Aspects of Intellectual Property Rights (the TRIPS Agreement). Anti-suit injunctions (ASIs) and interim licences reaching patents granted under Brazilian law, valid only within national borders, violate comity and exceed the limits of sovereignty.
The UK decisions granting interim licences
Recent decisions by the High Court of England and Wales (EWHC) and its Court of Appeal (EWCA) reveal a troubling trend of attempted extraterritorial overreach, contravening TRIPS Article 1.1. As the WTO panel in DS No. 611 stated, members must not frustrate the functioning of intellectual property systems implemented by other members in their territories.
Several decisions illustrate this interference with ongoing Brazilian litigation:
Ericsson v Lenovo and Motorola – Lenovo sought UK courts to compel Ericsson to suspend the enforcement of injunctions issued in Brazil and Colombia. The EWCA granted Lenovo an interim licence declaration to undermine Latin American court decisions. This occurred more than six months after the Rio de Janeiro State Court of Appeals had already upheld the injunction.
Huawei v MediaTek – the EWHC expedited its fair, reasonable, and non-discriminatory (FRAND) trial to pre-empt Brazilian and German proceedings, citing the speed of the Brazilian proceedings as justification. In Brazil, MediaTek argues an “international jurisdictional challenge”, claiming Huawei lacked legal standing because the British court would set FRAND terms. The Rio de Janeiro court rejected this, reaffirmed its jurisdiction over infringement of Brazilian patents, and recognised Huawei’s legitimate interest in halting the infringement regardless of the UK proceedings.
Samsung v ZTE – while Brazilian courts ordered Samsung to cease the unauthorised use of ZTE’s standard-essential patents, the EWHC conferred an interim licence and deemed ZTE to have breached its FRAND obligations, characterising its pursuit of injunctive relief in various jurisdictions, including Brazil, as bad faith.
Amazon v InterDigital – the EWHC granted Amazon an ex parte anti-anti-anti-suit injunction, seeking to prevent InterDigital from enforcing the European anti-interim-licence injunctions (AILIs) previously granted by a German court and the Unified Patent Court (UPC).
These cases expose the incompatibility between the UK’s interim licence regime and TRIPS Article 28.1. As DS No. 611 noted: “[T]he ASI policy establishes a course of action that frustrates the exercise of the exclusive right of a patent owner to prevent the use of the subject of its patent without its consent”.
Brazilian Supreme Court reasserts sovereignty
The Brazilian legal system, grounded in the principle of sovereignty, defines the jurisdictional boundaries within which legal disputes are adjudicated. The autonomy of its jurisdiction, enshrined in the Constitution and regulated by the Civil Procedure Code, ensures that foreign acts only produce legal effects in Brazil when duly recognised through the appropriate procedure.
This was recently reaffirmed by the Brazilian Supreme Federal Court in ADPF 1178 (August 2025), in a case that involved foreign judicial interference. A British court had decided to compel the Brazilian Mining Institute to withdraw a request for an injunction before Brazilian courts, considering that such relief could disturb litigation pending in the UK.
Justice Flávio Dino stated that foreign judicial acts have no binding force in Brazil unless they are formally recognised through the procedure for validation of foreign judgments before the Superior Court of Justice. He characterised the British decision as incompatible with comity and Brazil’s sovereignty, reaffirming that no country is subordinate to the judicial acts of another.
European courts’ rebuttal of ‘jurisdictional imperialism’: Munich and the UPC
European courts have also taken a firm stance against UK decisions. After Amazon filed a pre-emptive UK FRAND lawsuit and a Brazilian declaratory judgment of non-infringement against InterDigital, the Munich I Regional Court and the Mannheim Local Division of the UPC granted pre-emptive AILIs, condemning the UK’s “jurisdictional imperialism”.
These rulings marked the first time European courts recognised that the British interim-licence mechanism could exert coercive effects equivalent to ASIs. The UPC and the Munich court authorised substantial fines for non-compliance and linked their reasoning to the preservation of national jurisdiction.
The WTO’s position on ASIs and the TRIPS Agreement
On July 21 2025, following an appeal filed by the EU, the WTO issued its final award in DS No. 611, condemning ASI policy as incompatible with TRIPS articles 28.1, 28.2, and 1.1 for interfering with other members’ systems of protection and enforcement within their respective territories.
The same reasoning applies equally to UK interim licences: by forcing patent owners to suspend or refrain from enforcing injunctions abroad, they undermine the proper functioning of other WTO members’ patent systems.
The Paris Convention (Article 4bis) establishes the independence of national patents, providing protection and allowing enforcement only in the territory of the country in which the patent was granted. It unequivocally prohibits any action in relation to a patent in one country from interfering with the rights stemming from a patent granted for the same invention in the territories of other countries. The sense of this principle is identified by the convention as not admitting any restriction (Article 4bis, paragraph 2).
Attempts to neutralise injunctions issued by foreign courts, disregarding the territorial nature of patent rights, and undermining the autonomy of national legal systems represent a clear violation of the Paris Convention and TRIPS provisions.
Risks to legal certainty and Brazilian jurisdictional sovereignty
British courts’ interference with injunctions lawfully issued by Brazilian courts regarding patents granted in the Brazilian territory under the country’s national law poses concrete risks to legal and regulatory predictability. Such decisions distort market incentives and erode confidence in the effectiveness of Brazilian judicial decisions.
These practices encourage forum shopping, as parties seek favourable rulings abroad, bypassing local institutions. Over time, this undermines confidence in multilateral treaties and weakens the cooperative balance upon which international patent protection relies.
For Brazil, preserving jurisdictional sovereignty is not merely a constitutional matter; it is essential to maintaining a predictable, credible, and innovation-friendly legal ecosystem. The credibility of a patent system depends on each state’s ability to enforce its own statutes within its territory.
