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February 12, 2015

Newsletter 2015.03 – Brazilian Antitrust Authority expected to decide cases of “sham litigation” involving patents in 2015

It is expected that, in 2015, the administrative court of the Brazilian antitrust authority (Conselho Administrativo de Defesa Econômica – CADE) rules some important cases involving the sham litigation doctrine applied to intellectual property. It is expected that these cases will more accurately indicate what CADE understands as anticompetitive behavior and infringement of the economic system concerning the abuse of intellectual property rights.

CADE’s administrative court is a federal nonjudicial instance encharged with enforcing the constitutional economic principles, such as free enterprise, freedom of competition, social role of property, consumer protection and the restraining of abusive behavior. Among its institutional competences it can be mentioned the legally required prior consent to “acts of economical concentration”, such as mergers and acquisitions, and the application of sanctions to infringements of the economic order.

It is always worth remembering that the current Brazilian antitrust Act, differently from its predecessor, expressly considers the possibility of undue use of intellectual property rights as a hypothesis of infringement of the economic system. The administrative court forthcoming decisions this year will help to clarify what CADE understands as an abusive use of intellectual property rights.

The American doctrine of sham litigation, which forbids the abusive use of the judicial system as a way to constrain competitors by the lawsuit itself, regardless of the merits’ pertinence or chances of success, has already been applied by CADE in past decisions. The novelty this time falls within its application to intellectual property related cases.

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November 22, 2016

IP Licensing In Brazil: Brazilian Antitrust Watchdog Reviews Its Rules On Agreements Subject To Prior Approval

It will come into force next Thursday (November 24, 2016) a new resolution issued by CADE (Conselho Administrativo de Defesa Econômica), the Brazilian antitrust authority, that redefines the rules for the submission of “associative contracts” for prior approval.

September 28, 2016

The changes to Brazil’s Civil Procedure Code are welcome although it may take some years for them to be put into practice

After many years of scholarly and political debate within the National Congress, the new Brazilian Civil Procedure Code was passed into law last year and came in force in March 2016, replacing its 1973 predecessor. It is expected that the new rules of civil procedure will reduce litigation in Brazil by favouring alternative dispute resolution methods as well as by allowing and incentivising cooperation between the parties of lawsuits. In particular, we shall address some possible impacts for intellectual property litigation

July 1, 2016

Auto Parts: Brazilian Antitrust Authority Recommends the Sanctioning of Car Industries for IP Misuse Of Registered Industrial Designs

The Superintendency of the Brazilian antitrust authority (Conselho Administrativo de Defesa Econômica – CADE) has recommended the sanctioning of three major automobile manufacturers for infringing the economic order on grounds of an alleged abuse of intellectual

property rights.