SEPs and the Law in Brazil – Episode 22


March 28, 2023

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  • Otto Licks, Licks Attorneys
  • Roberto Rodrigues, Licks Attorneys

Licks Attorneys is one of Brazil’s most respected law firms in litigation with a focus on complex, often technology-driven disputes that include standard essential patents (SEPs). With offices in Rio de Janeiro, Sao Paulo, Brasilia, Curitiba and Tokyo, Licks Attorneys combines industry knowledge with legal expertise to assist a wide variety of Fortune 500 high-tech start-ups in Brazil. The multidisciplinary team of attorneys has handled complex commercial and corporate claims over the last 20 years in major sectors including technology, the internet, telecommunications, life sciences, medical device, and finance.

In the podcast, Otto Licks, founding partner, as well as Roberto Rodrigues, partner at Licks Attorneys, elaborate on their experiences from over 10 years of SEP litigation in Brazil. While Brazil was historically in the second wave of worldwide SEP litigation campaigns, the country stepped up to be more and more in the first wave when patent holders plan their worldwide litigation to enforce SEPs. Otto Licks states that litigants can expect quick and efficient decision-making in Brazil. Here, patent holders like the fact that the rate of SEPs that were killed during litigation is almost 0%. One reason is that Brazil follows a bifurcated system, where different courts handle infringement and invalidity. Courts therefore always assume a patent to be valid. Also here the Brazilian patent office has a reputation of only issuing high-quality patents.

Brazilian courts always consider the licensing negotiation track record in their decision making and patent holders must provide evidence that they have entered licensing negotiations before issuing preliminary injunctions. However, Brazilian courts do not determine a FRAND rate. That is also why Brazil has never been involved with anti-suit injunctions in the past.

Another reason why Brazil is an increasing venue for SEP litigation is that the Brazilian smartphone market is one of the largest in the world. Here injunctions really hurt the defendant. Not only because of the market size but also for the high product margins in the market. Smartphone prices are comparably high in Brazil compared to other markets.

Both Otto Licks and Roberto Rodrigues conclude that they expect the number of SEP litigation in Brazil to increase further, maintaining Brazil’s position as a major jurisdiction for worldwide patent disputes.

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