Brazil has emerged as a significant player in global IP disputes in 2025, particularly in matters involving SEPs. The country is often chosen by rights holders when it comes to protection and enforcement due to its robust legal framework.
Home to over 212 million people, Brazil is the seventh most populous country in the world and one of the largest markets in the global digital arena, particularly with regard to smartphones, and ranks fifth among countries with the largest digital populations (behind China, India, the United States and Indonesia).
From an economic perspective, Brazil ended 2024 as one of the world’s top 10 economies, with a GDP of approximately US$2.19 trillion. The 3% growth rate highlights the country’s resilience to global challenges and reaffirms its attractiveness as an expanding market for technological investment. In today’s fast-paced market, understanding the scope of IP protection available for new technologies is vital. When protecting IP assets internationally – whether through patents or other mechanisms – it is crucial to consider varied legal frameworks, enforcement mechanisms and market dynamics.
Brazil’s legal framework offers multiple layers of IP protection, including for patents, copyright, trade secrets and fair competition practices. The judiciary, which is becoming increasingly specialised, acts with rigour and efficiency to address violations, fostering a predictable and innovation-friendly legal environment.
Article 5(29) of the Constitution of the Federal Republic of Brazil 1988 governs IP rights and is aimed at promoting social interest and economic development. Complementing this, the Brazilian IP Law grants patent holders exclusive rights to prevent unauthorised use, manufacturing, offering for sale, selling or importing for such purposes their patented products or a product obtained directly from the patented process, enforcing these rights through civil and criminal sanctions.
Brazil’s legal framework does not discriminate when it comes to types of patents. SEP holders have the same rights as regular patent owners. Infringement constitutes a civil and criminal offence (Articles 42 and 184, respectively), which may also amount to unfair competition (Article 195(3)). In SEP cases, unfair competition often arises when companies bypass licensing obligations and undercut competitors that comply with licensing terms and generate undue profits. In SEP enforcement, there is no reliance on essentiality – evidence of infringement must meet the same legal standards of any type of patent enforcement.
In Brazil, patent assertion suffices to halt infringement. Unlike some jurisdictions, Brazil does not require protective letters, preliminary validity reviews or anti-suit injunctions. Procedural issues or technicalities rarely lead to the dismissal of infringement actions.
Additionally, under Article 42(2) of the IP Law, the burden of proof shifts to the defendant in process-patent cases. The defendant is required to demonstrate that it uses a different process to the one claimed in the patent. This provision reduces costs for the patent holder and expedites judicial proceedings as the defendant is presumed to possess the necessary evidence.
The dynamic distribution of the burden of proof is also applied under Article 373(1) of the Brazilian Code of Civil Procedure. The judge assigns the burden of proof to the party best equipped to produce evidence, whether this is due to technical expertise or access to necessary information. Consequently, the defendant can be required to prove that its product does not use the patented technology. This approach enhances the efficiency of judicial proceedings by assigning evidentiary responsibilities to those best positioned to prove contested facts.
Further, Article 44 of the IP Law ensures that patent holders are entitled to compensation. While Brazil does not recognise punitive or enhanced damages like in the United States, SEP holders can seek compensation for unauthorised use from the application’s publication date, using the most favourable criteria to the injured party (Article 210).
The mixed bifurcated structure is a distinctive feature of Brazil’s patent litigation system. Unlike countries with dedicated patent courts (eg, Germany or the United States), Brazil separates infringement and invalidity issues into different forums – state courts handle infringement and compensation claims while federal courts address patent validity, particularly when federal entities are involved. This model enhances efficiency by helping to reduce procedural conflicts and streamline case resolution.
Invalidity can also be raised as a defence against patent infringement in state courts. In a June 2024 ruling on an appeal, the Second Chamber of the Superior Court of Justice confirmed that the recognition of patent invalidity by state courts, being incidental in nature, produces only inter partes effects (EREsp 1 332 417/RS). It can exclusively serve as a basis for the dismissal of claims brought in related infringement actions. Moreover, as Article 56(1) of the Brazilian IP Law explicitly allows the invocation of the invalidity defence, disregarding this would result in an undue restriction of the fundamental right to a full defence in violation of Article 5(55) of the Constitution.
Notably, Brazil does not automatically stay infringement actions when nullity actions are filed – courts require substantial evidence to justify a stay. This approach allows enforcement to proceed unless clear evidence of invalidity is presented. The kill rate of asserted patents is lower than those of other jurisdictions, such as Germany and the United States.
In September 2024, the Second Chamber further clarified this stance, holding that suspension must be based on substantial expert evidence (AgInt no AgIt no CC 198259/SP). The court ruled that suspension of an infringement action is not automatic, even when a related nullity action is pending before the Federal Court. The state court must first evaluate the evidence to determine whether the disputed subject matter falls within the scope of the patented technology or potentially infringes the plaintiff's IP rights. This prevents unnecessary delays and aligns with the proportionality principle and judicial efficiency.
Judicial specialisation is enhancing predictability and expertise in IP litigation. Federal courts in Rio de Janeiro pioneered specialised IP chambers in 2004, which created business courts exclusively for IP disputes. This has strengthened the judiciary’s capacity to address complex IP issues, including SEPs and IT-related disputes.
Brazil’s judiciary has demonstrated its effectiveness in protecting patent holders' rights by granting injunctive relief to prevent irreparable harm and ensuring a balanced enforcement environment. These developments position the country as a reliable and strategic jurisdiction in global SEP disputes.
Brazilian courts have demonstrated a strong commitment to curbing IP violations, placing significant importance on innovation and IP rights. Injunctive relief – particularly preliminary injunctions – has proven to be a crucial mechanism for safeguarding these rights. Recent IT and SEP cases illustrate the judiciary’s proactive role in supporting patent enforcement and fostering innovation.
Defined under Article 209(1) of the Brazilian IP Law and Article 300 of the Code of Civil Procedure, preliminary injunctions are instrumental when it comes to halting ongoing infringement as they uphold the patent holder’s rights while preventing irreparable damage to its interests.
Recent SEP rulings have showcased judicial measures by:
Noteworthy cases include:
Brazil’s legal system offers robust mechanisms to protect patent rights, address non-compliance and enforce judicial decisions. These mechanisms scale enforcement measures as necessary, making litigation a key tool to halt SEP infringement by unwilling licensees. By prompting good-faith licensing negotiations, litigation often culminates in global licensing agreements.
The use of streamlined court-appointed expert examination has emerged as an effective strategy for reinforcing preliminary injunctions while other enforcement measures underscore the country’s commitment to upholding the rule of law in the digital and technological landscape.
Brazil’s approach exemplifies how strong judicial systems foster innovation, safeguard intellectual property and promote dispute resolution through global cooperation and agreements. As SEP litigation evolves, Brazil stands out as a critical player in balancing enforcement and negotiation, ensuring technological innovation is both recognised and protected.
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