Preliminary Injunctions: Bringing Expert Evidence Forward
Brazilian law allows preliminary injunctions in patent infringement disputes, including before the defendant is heard. Article 209(1) of the Brazilian Industrial Property Law (Law No. 9,279/96) authorizes measures to prevent irreparable or hard-to-repair harm, while Article 300 of the Code of Civil Procedure requires evidence establishing a likelihood of success and a risk of harm or of prejudice to the effective outcome of the proceedings.
But when will an injunction issue in a standard-essential patent dispute?
Recent decisions, particularly in Rio de Janeiro’s Business Courts, have deferred consideration of preliminary injunction requests until a court-appointed independent expert has submitted a report. Rather than deciding based solely on declarations of essentiality and privately commissioned opinions, courts are seeking independent technical evidence on essentiality and infringement before determining whether to impose restrictions.
Does that mean waiting until the ordinary evidentiary stage?
Not necessarily. Courts are bringing expert examination forward through early expert appointments and expedited procedural timetables. In some cases, the expert is appointed at the outset, and the parties are directed to submit questions for the expert and identify their technical assistants together with their defense and reply briefs. This moves technical evidence to an earlier point in the proceedings, providing a basis for the injunction decision without waiting for the evidentiary phase to run its usual course.
The approach combines two moves: postponing the injunction decision while accelerating the evidence needed to make it. Procedural calendars, including consensual calendars under Article 191 of the Code of Civil Procedure, help structure that examination while preserving each party’s opportunity to participate and respond.
And where does FRAND fit?
Courts are increasingly examining licensing offers, comparable license agreements, and negotiating conduct alongside the technical record. The inquiry need not involve judicial rate setting; it might instead assess whether the licensing position and requested relief are consistent with fair, reasonable, and non-discriminatory commitments.
Early expert examination is not a universal prerequisite, and preliminary injunctions remain available. The emerging approach is not simply to delay enforcement but to bring the decisive evidence forward, so that interim protection rests on a stronger record.
