Tuesday, April 21, 2026
Executive Summary
In an April 2026 UC Berkeley Center for Law and Technology webcast, patent litigator Rob Rodrigues surveyed Brazil’s rapidly maturing patent enforcement landscape, concluding that the country’s robust statutory right to preliminary injunctions — routinely granted within weeks of filing and frequently driving global settlements — demands urgent attention from any multinational operating in or entering the Brazilian market.
Instructor(s)
Rob Rodrigues, Partner, RNA Law (Brazil)
Wayne Stacy, Executive Director, UC Berkeley Center for Law & Technology (BCLT), UC Berkeley School of Law
Keywords
Brazil patent litigation 2026 • Brazilian preliminary injunctions patent enforcement • FRAND defense Brazil SEP litigation • Brazilian IP statute injunction rights • Court-appointed expert Brazil patent cases • Non-practicing entities Brazil PAE litigation • Brazil patent office AI examination guidelines • Bifurcated patent system Brazil federal and state courts • Standard essential patents Brazil 5G enforcement • “How does patent enforcement work in Brazil” • “Preliminary injunction standard Brazil patent 2025 2026” • Brazil patent settlement dynamics global resolution
Legal Analysis
Brazil’s Statutory Right to Injunctive Relief and the Collapse of Pre-Trial Litigation
Brazil’s patent enforcement regime departs sharply from the post-eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006), landscape that governs American practice. Where U.S. courts apply a four-factor equitable test that has made preliminary injunctions “almost non-existent,” as Stacy noted, the Brazilian IP Statute (Law No. 9,279/1996) codifies injunctive relief as a substantive right of the patent owner. Rodrigues explained that the statutory framework “establishes that it’s the right of the patent owner to obtain injunction relief, and doesn’t matter if it’s a former case, a meta case, SEP case — it doesn’t matter.” The practical consequence is a grant rate that renders the preliminary injunction the central instrument of patent strategy rather than an exceptional remedy. In a recent illustration of the system’s reach, a Japanese non-practicing entity, IP Bridge, obtained a preliminary injunction within weeks of filing against Chinese automaker Chery, ordering it to cease implementing the asserted 5G technology and, absent compliance, to halt vehicle sales in Brazil — a jurisdiction covering a mobile-connected population in which, Rodrigues noted, approximately 65 percent has 5G coverage. A bond requirement analogous to Federal Rule of Civil Procedure 65(c) is absent as a matter of right; bond is discretionary with the court, and in practice, Rodrigues observed, “we don’t see that happening that much.” The result is an asymmetric pressure structure: defendants facing a granted preliminary injunction carry the full commercial risk of an injunction with little offset mechanism, a dynamic that Rodrigues described as generating overwhelming pre-trial settlement pressure.
Settlement Dynamics, Discovery Limitations, and the Strategic Use of Section 1782
The absence of American-style discovery and the prevalence of rapid injunctive relief combine to produce settlement dynamics that, Rodrigues predicted, will increasingly drive global — not merely local — patent resolutions. In the telecommunications sector alone, he estimated that of approximately seventy cases ever filed in Brazil, only two or three have reached full trial on the merits; “the pressure of a PI makes parties settle,” he stated, adding that a preliminary injunction confirmed by the appellate board represents “the moment that parties understand that they need to settle.” For patent owners confronting the evidentiary challenge that Brazilian practice poses — there is no deposition practice, no document production of right, and no interrogatories — Rodrigues identified a growing workaround: filing a 28 U.S.C. § 1782 application in the United States to obtain documents for use in the Brazilian proceeding. “We file a Section 1782 in the US to get access to certain documents,” he noted, describing this as “something that I’m seeing happening a little bit more.” Short of that mechanism, evidence requests in Brazil are addressed to judicial discretion on a targeted, document-specific basis; a court will not issue what Rodrigues characterized as “a blank check and access to everything.” This evidence scarcity reshapes the litigation model fundamentally: the strategic premium falls on assembling and presenting strong pre-filing evidence rather than relying on adversarial disclosure to develop a case. In the pharmaceutical sector, for instance, access to a full regulatory dossier to establish infringement is generally unavailable; a litigant must instead identify and request the specific document that demonstrates the infringement. The system thus rewards parties who can construct infringement theories before suit is filed.
AI Patent Guidelines, Bifurcated Courts, and Brazil’s Emerging Role as a Patent-Exporting Jurisdiction
Two structural developments signal that Brazil’s patent system is maturing beyond the posture of an enforcement destination for foreign rights-holders. The first is institutional: Brazil’s National Institute of Industrial Property (INPI) has issued for public comment guidelines on the examination of AI-related inventions, drawing substantially on the framework developed by the European Patent Office. Rodrigues, who participated in the working group that submitted comments on behalf of the U.S. IP Owners Association, described the guidelines as addressing disclosure sufficiency (requiring applicants to detail dataset structure, input-output correlations, and data preprocessing steps), while candidly acknowledging that the inventive step question for AI-assisted research remains unresolved globally: “I don’t think any office in the world knows how to handle this.” Practitioners must also navigate Brazil’s bifurcated court structure, in which federal courts adjudicate validity challenges while state courts hear infringement claims — systems that “don’t interplay,” as Rodrigues put it, proceeding at different paces and before judges with no technical background who rely heavily on court-appointed experts. The practical implication is stark: Rodrigues estimated that when a court-appointed expert’s report finds against a party, that party’s probability of prevailing on the relevant technical issue is “below 10%.” The second structural development is perhaps more consequential for the global IP order: Brazilian companies are beginning to file patents offensively in foreign jurisdictions. Rodrigues described his firm’s representation of a Brazilian company in the first patent enforcement action brought before the Unified Patent Court by a Latin American entity — an infringement suit against a German competitor. “When you realize that there’s a change,” Rodrigues observed, “Brazilian companies are not anymore just on the infringer side.” Taken together, INPI’s AI harmonization effort, the expansion of PAE activity drawn by the injunction-friendly regime, and the emergence of Brazilian patent plaintiffs in European forums indicate that Brazil has transitioned from a peripheral to a structurally significant node in international patent litigation.
Generated by AI based on the Interview/Transcript below.
Key Takeaways
- Injunctions are statutory, not equitable. Brazil’s IP Statute codifies a patent owner’s right to preliminary injunctive relief regardless of patent type, fundamentally distinguishing Brazilian practice from the post-eBay U.S. framework — “it doesn’t matter if it’s a former case, a meta case, SEP case,” Rodrigues stated.
- PI timelines are measured in weeks. A preliminary injunction can issue ex parte within 24 hours of filing; Rodrigues estimated a typical timeline of a few weeks to six months to obtain both a trial-level decision and appellate confirmation — dramatically faster than U.S. patent litigation.
- Settlement, not trial, is the system’s terminal event. In the telecom sector, Rodrigues estimated that fewer than three of approximately seventy Brazilian patent cases have gone to full trial; the confirmed preliminary injunction is the settlement trigger, not a damages verdict.
- Section 1782 is becoming a discovery bridge. Rodrigues identified a growing practice of filing 28 U.S.C. § 1782 applications in U.S. federal courts to obtain documents for use in Brazilian proceedings, partially mitigating the absence of formal discovery.
- Court-appointed experts are the de facto fact-finders. Because Brazilian judges lack technical backgrounds, court-appointed technical experts wield dispositive influence; Rodrigues estimated that a party who loses the expert’s report on validity or infringement prevails less than ten percent of the time.
- Public interest can condition or revoke a PI, with damages consequences. Judges weigh consumer impact and employment effects before granting preliminary injunctions, and Brazilian law provides that a patentee whose PI is revoked must pay back damages — creating a deterrent against overreach.
- Brazil’s PAE and NPE docket is expanding. Non-practicing entities, drawn by the injunction-available regime, are increasing filings in Brazil, mirroring the PAE growth curve in the United States a decade earlier.
- INPI’s AI examination guidelines signal global harmonization. Brazil’s patent office has issued draft AI-examination guidelines aligned with EPO practice, requiring detailed disclosure of dataset structure, preprocessing steps, and input-output correlations — though the inventive step standard for AI-assisted invention remains unresolved.
- Brazilian companies are now patent plaintiffs abroad. Rodrigues described the first UPC enforcement action ever filed by a Latin American company — a Brazilian client suing a German competitor — as evidence that “Brazilian companies are not anymore just on the infringer side.”
- A global settlement can flow from a Brazilian PI. Because a preliminary injunction threatens a company’s entire Brazilian market operation, Rodrigues noted that the commercial pressure it generates “drives a global resolution,” extending the strategic leverage of Brazilian enforcement far beyond the jurisdiction.
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Interview/Transcript
This interview/transcript was based on a conversation about Brazil’s Patent Landscape, hosted by Berkeley Center for Law & Technology, UC Berkeley School of Law. The conversation was presented by Rob Rodrigues, Partner, RNA Law (Brazil) and occurred on April 21, 2026.
Wayne Stacy 00:25
Welcome everyone to the UC Berkeley Center for Law and Technology’s webcast. Today, we have a wonderful presentation material you don’t hear a lot about. We’re going to look at the patent landscape in Brazil, which those of you that have been around for a while know that 20 years ago, this wasn’t really a webcast or an article to even pay much attention to. Today, you ignore Brazil at your own peril. But trying to understand what that means, what does it mean to ignore it versus embrace it? What do you need to know? So we went to the source and went straight to Brazil to bring you a long term partner of ours. So I want to introduce everyone to Rob Rodrigues from RNA Law out of Brazil. Rob, not only you know, strong background in Brazil, but strong background here in the Valley, as much as I dislike it. He’s a Stanford Law School LLM, you know, decent place, but I’ve been at Berkeley long enough. They teach me to not say good things about Stanford. But the reality is, when you look at the IP programs, Stanford and Berkeley turn out just great leaders. And Rob is also, you know, was the lead editor for the Stanford Technology Law Review. So deeply, deeply ingrained in the IP community here in Silicon Valley. When you look at — look at his entire bio, you start seeing those markers of excellence, the lexology, the chambers ratings, the who’s who, and legal ratings. So you’re really beginning to see this great understanding of what US companies need and what these US companies need in a Brazilian market. So I’m excited to have Rob join us again. He was with us last year at the Advanced Patent Law Institute, so I thought we could press our luck and ask him for a little more of his time. So with all of that, Rob, appreciate you joining us here today, and I’m going to turn it over to you so you can tell us what we need to know about IP patent litigation in Brazil.
Rob Rodrigues 02:45
Thank you very much, Wayne. I appreciate your kind words. Appreciate the opportunity of you going there to try to find more about the jungle down here in Brazil. So it’s a wonderful moment for us to share. Yes, I went to Stanford 10 years ago, and was a very bright time for us, because at that time, McCaffrey was playing for for Stanford. So we did have very good games against Berkeley and yeah was a fun moment. I have been practicing patent litigation for almost two decades already, and it’s quite interesting how we did see things. We see things changing, right? For instance, when I went to Stanford like, 10 years ago, we only had one or two cases filed in Brazil discussing standard essential patents, right? So we are writing the first wave of cases that I was able to participate filing cases on discussing like SEPs in Brazil. And nowadays, this year, we are seeing, in one single year, 50 filings, right? So in 10 years, we saw something coming from one to 50, which is a very remarkable growing and when I go to speak to clients and companies and even lawyers all over the world. They ask, why is that? And that’s a lot of explanations, and we can start by how Brazil as an economy is developing beyond their agro industry. Right? Brazil is, primarily, for the past 20 years, a commodity based country, right? So a lot of our industry oriented was around agro specifically, and we are growing a lot from that to become a more active community and big consumer market, right? So as the world opens and opens more, Brazil becomes more attractive to to those companies, and with them opening activities in Brazil, they also face litigation, right? So I guess one thing brings the other. And then we, on top of that, we do have a very strong IP system where preliminary injunctions, for instance, are available. So in cases where we see where we have a preliminary injunction practice very limited, and we know in the US how limited it can be, when you go to a country like Brazil, you do have a very high range of preliminary injunction possibilities, and that, with that, brings opportunities for clients, for companies, to enforce patents, right so? And another thing of interest is the timeline from filing to trial has been also shortened. So we’ve seen cases moving faster. Beyond this, the fact that you do have injunction availability, you have a posting consumer market, we also seen faster trials. So this whole combination, it sees like how Brazil is becoming, I guess, — when I 10 years ago, if you, 10-15, years ago, when you say you wanted to be the cohere in patent litigation, everyone will say, you are not very smart, right? Like say, Okay, what do you mean by that? Of course, we did have already the pharma cases, but the same time it wasn’t a practice, and nowadays we have big firms with a lot of lawyers doing only patent litigation. So it’s like 10 years ago. I would know the whole community. Nowadays, I don’t know anymore. From 10 to 15 people practicing, you already have 70 people, 75 and growing. So we see a growing number of people interested i the difference. We know how it’s remarkable — patent litigation — because you combine different technologies. So you have cases on pharma, agrochemical, but semi conductor, computer science, mechanics. There’s one thing about, interesting about in Brazil is that most lawyers don’t have a technical background. So patent litigation Brazil is a combination between people with technical background, so the scientists, and a litigator like me — a lawyer. So I have a law degree, I have zero technical background, so we team up and then work. So this is — a combination of this is what becomes a successful patent litigation practice, and only a few have a combined degree. So this is one of the main — one big difference compared to other countries, and we also don’t have a jury trial system, so everything is decided by a judge. We don’t have discovery as well. So a lot is paper based and evidence oriented based on the findings you can produce before finding a case and at the same time produce during the case. But it’s very limited for what you can learn from discovery, right? So it’s a very different practice. I did practice in the US. I did work in a law firm the US for a time. So I understand a little bit of the nuance of the difference, and this is a major difference, right? The lack, the fact that we don’t have discovery, makes the system a lot like about like, a strategic way of obtaining information and using that leverage is a major thing. And one interesting thing that I can go ahead and share is this year we have one remarkable change. So if you think about the patent companies with patents, you do not think about Brazilian companies, right? You think about American companies, European companies, Asian companies. But this year, we had a Brazilian company that we are representing on the match tech field filing the first UPC patent enforcement case ever filed by a Brazilian and Latin American company against a German company. So this company that we are representing is suing a competitor in Germany and arguing patent infringement. So this doesn’t look much different, but when you realize that there’s a change as well. So when I see that Brazilian companies are not anymore just on the infringer side, but also starting to realize: invest in innovation, get patents granted, they’re also beoming active side, and not just in Brazil, worldwide. So this is a major, I’d say, on when you look at moments in your career, that you need to see things are changing. I guess this year, this new development, it’s quite interesting. Is a case — there’s a bunch of — if you look in the Google we’re going to see a bunch of information, it is a very interesting case, and I wanted to focus a little bit on the idea that we have on preliminary injunctions. We are, of course, seeing like for instance, last week, there was a case file by a Japanese company called IP Bridge and enforcing a cellular patent, 5G technology patent, against car maker Chile, right? So IP Bridge put together case and file a PI against Chile, and the PI was granted last week — ordering Chile to stop implementing the technology, and if they don’t, then stop selling the car. Right? This is one of examples of how big. How much bigger it is becoming — like a Japanese, non practicing entities suing a Chinese, one of the largest car makers in the world, in a jurisdiction Rio, and obtaining a preliminary injunction. So this is a type of things that, when you have to look at the framework, say, Wow, things are definitely quite interesting. And then we receive a lot of questions like, okay, but what’s going on right? And first is, we do have very mobile oriented population, so almost 65% of the population has coverage of 5g and it’s growing. And we do see, like big companies like all of the Samsung, Motorola, Apple, selling a lot of devices in Brazil. This is, and this becomes part also of the economy. We have a very high population of streamers. So streaming is a major thing, like gamers that stream games, this is a major thing in Brazil. So the connectivity is also generating this new thing. And this new, like, for the new generation, these new opportunities. And with that, we see a lot of litigation. And a couple of years ago, one of the major criticism, I would say, in the patent system in Brazil was tendency and backlog at the patent office, right? And few years, the patent office made a major change in trying really to streamline and fast track examination is still a struggle. We’re still not as fast as we should, but this is a good development. It’s getting faster at least, and then we see more patterns being granted, right? So, years ago, we have a backlog of 12 to 15 years. It’s reducing. It’s still not on the level that we want it to be, but it’s something that is happening, and it’s quite interesting. And one interesting topic around that is we’ve seen the one of the big changes is how the local Patent Office, it’s really wanted to be on the forefront of setting up new examination guidelines. And couple of months ago, it decided to issue for public comments AI related guidelines, right? How examination of AI inventions and in general, not just AI per se, but also technologies using AI should be examined. It’s a lot aligned to what EPO was doing. I participated together with the US IP owners association on the working group that submitted comments but this shows one step of how the patent office is also trying to be harmonized with world, other global patent office on how to examine these things we know is going to be very challenged, right? So it’s a quite remarkable topic that we should definitely consider. We are already discussing disclosure, how an AI model was used, this type of working on the disclosure. Is it enough to satisfy the sufficiency requirement, right? So the patent office already provided that you need to provide more, right? You need to show, for instance, the structure of the data set, the correlation between the data and generated data, the input data and the output generated by AI. The pre processing steps include your data cleaning and normalization procedures. So we see in that. One interesting thing is a training method, for instance. So we do see some concern for companies to address that. The other topic is inventive step, right? I still think that, I don’t think any any office in the world knows how to handle this, particularly, how do you going to define events? Is that on when you have AI actually helping the research? I think it changes a lot. What’s the definition of, even the definition of (unclear), right? Because it’s definitely changed research. But we see at least a patent office trying to find, trying to put order the house in order to be able to examine this case. And one remarkable thing on patent prosecution is we do have grace period, 12 months, and the other nuance is claim amendment is to a challenge in Brazil. So there’s a very strict, compared to any place I’ve been practiced in the world, very strict interpretation of what you can do after you request examination of an application. And anything you do that could sound like you’re broadening the scope of the claims is going to be denied, and this is a very like strong rule, so it’s something for practitioner to be very aware of. And we do have bifurcated system where federal courts will hear validity challenges and infringement courts will hear and, sorry, stage courts will hear infringement, right? So this bifurcated system is interesting because they don’t interplay, right? So they either go in a different pace. There’s sometimes some tentatives [attempt] to make sure that they communicate, but just not often that happens. And just today, we got a major decision for Johnson and Johnson on a case where we got a favorable trial decision ordering the competitor, granting J and J a permanent injunction against a competitor, and this trial was stayed because the appellate court said that in view of the process, the stage court limited the ability of the infringer to allege invalidity as a defense. But that court, the ballot court, fails to recognize that the infringer was also seeking invalidity before federal courts, right? So what the company was trying to do is trying to attack validity on both fronts. And the appellate court, because of due process, decided to stay the trial and today, actually. So this is a lucky day for this event, we got the PI, we got a prevention junction reinstated by the chief judge of the Sao Paulo state courts, based on the fact that the validity court is actually establishing that a claim is valid, and based on the urgency, the grant of this PI is very relevant. So this is one example of the interplay, how these systems don’t interact. So we need to, like, really litigate these in a different way. I guess it’s very different from the US, where you don’t have that. So you appear with different judge, with different arguments, and you need to find a way to combine to get a victory for a client. So today was a very good day for us, where we were able to get this decision. And since we’re talking about injunctions, this is also something that is a lot for my practice, right, injunction in Brazil, different from other countries, is established in the patent law, in the patent statue, right? So the Brazilian IP statute establishes that it’s the right of the patent owner to obtain injunction relief, and doesn’t matter if it’s a former case, a meta case, SCP case. Is it doesn’t matter, right? It’s general right of the patent owner to get injunction relief based on likelihood of evidence, like the likelihood of winning on the marriage, but at same time, urgency, right? So this frame is a lot, the whole case, like how a case progresses in Brazil, and this also generates a lot of pressure on defendants, right? So defendants are struggling to understand, okay, how do I challenge this PI? And so what we see as our answer is, instead of being on the defensive side, we see a lot of defendant initiated cases, right? So a defendant, potential infringer, file a DJ, no infringement in another courts that has a lower rate of PI just to be on the offensive side and avoid a PI threat. So this is the dynamic of the system. It’s quite interesting and remarkable. Another interesting thing is that our judges in Brazil don’t have a technical background, so they’re going to rely on what we call a court appointed expert. Right? You have in the US a dolbert type of system as well, so the court can appoint a technical expert, which is someone that the judge is going to rely on understanding the technical side of that and then digest that as a report, technical report, to be prepared so the judge can take a decision right. And then what you see is, in most of the cases, the judge is going to agree with this technical expert on matters of validity and infringement. So this technical expert actually becomes major player in litigation, in patent litigation in Brazil, right? Because you need to convince him, if you lose a case against him, the chances of you winning is low. It’s below 10%. And what type of cases are being filed in Brazil? Right? Like we do have a lot of streaming cases, I guess this is right now the largest number of cases on technology such as AVC, GVC and AV1. Just recently, there was a new AV1 case filed by Doby. But we do have companies like Netflix, Amazon, Disney being sued in Brazil on infringement of patent rights. We also have a growing practice of non practicing entities lawsuit like the patent PAEs I work with in the Mark Lemley group like a decade ago on an article that was published about the PA using in the US, how they grew a lot in the US in the last decade. And now we see this number of cases follow by PA use in Brazil also growing is something because of the PI System. So just as a matter of example. And going a little bit into the SEP world, a lot of clients ask us on FRAND arguments, right? So if you are an implementer and you want to raise a FRAND defense, like we see that in Germany, in Europe, you have the — how is it T type of defense and in Brazil, is this you developing, right? So we are introducing on a case by case basis, but last week, there’s a judge in Sao Paulo that issued a very interesting decision on case filed by Asser against Nokia, where the judge understood that on a matter like that, it’s not about just the patent infringement side, but also about the dispute, the contractual dispute. So it’s interesting for the judge, he established like a bifurcated system, where before going to the technical merits of each pattern, he wants to understand the negotiation and the FRAND negotiation. And one of the premises that he established was comparable license. So this is something that we’re going to see whether this will move forward. But is a quite interesting development. And to finish here, maybe we do have the Brazil anti trust authority (unsure) reviewing some of those SEP and litigation. There is one case filed by — a complaint filed by Lenovo against Ericsson, where (unsure) is investigating Ericsson whether there was abuse of dominant position on seeking PIs against Lenovo, and this case is under investigation. And we expect a decision this year, and that will be a very interesting decision to watch. But Wayne, with that, I’m happy to, like, address questions you might have or or keep going. Thank you very much.
Wayne Stacy 25:13
Yeah, I did. I did have a few, and I was going to start with the timing. You know, the timing in the US is always horrific — horrifically slow, I should say. In what you’re talking about for a patent case, you said it was quick. But if I’m looking at two things, how long from the start of a case to a preliminary injunction being put in place?
Rob Rodrigues 25:35
So for PI, we do have potential, like for next party, we can get in the same day — 24 hours from filing. But in average, I’ll say a few weeks to three months, six months is an estimate for a PI to be decided both on trial level and for format or reverse in appellate level. So a PI framework of six months to have what I can say, two decisions right, a decision by the appellate board and a decision by the first instance judge.
Wayne Stacy 26:08
In the US, if you’re going to get a preliminary injunction, you have to post a bond related to the potential damages if you’re wrong. Is there a bond requirement in Brazil?
Rob Rodrigues 26:19
Good question. It’s not a requirement. Some judges might ask for that in terms of who you are. So it’s not a requirement. It’s discretionary. In practice, we don’t see that happening that much. What we see actually, is company like the defendant asking the judge to try to convert the PI on a bond, right? So they asked the judge whether they can post a bond. So instead of having the PI, the PI lifted for this bond. So this is how we framing that.
Wayne Stacy 26:55
Okay, okay, Well, then my next question would be, in this the availability of any kind of discovery, especially for inventions that are hard to reverse engineer, hard to completely understand whether there’s infringement or not. How would a patent owner go about getting enough information to prove infringement?
Rob Rodrigues 27:19
So good points, and that’s very much part of my practice on how to do that, right? One of things that we’ve seen recently, it’s more use of Section 178 A to the US, right? So you have a litigation in Brazil, and then we file a section 172 in the US to get access to certain documents, right? This is something that I’m seeing happening a little bit more. It allows for cooperation between evidence to be used in cooperation. So this is one example. The other one is by filing a production of evidence requests. So you ask certain evidence to be produced, and it’s actually at the discretion of the judge. So, and I wouldn’t say that it’s likely a discovery, it’s more like a court order. And you need to be specific, right? You need to understand what you’re trying to seek and then convince the judge the importance of this to your case. So it’s very oriented to someone knowledge. You need to. It’s very hard for you to learn about something. So you’re not going to have in the pharmaceutical sector, for instance, it’s not going to have access to the whole dosier to understand whether this is infringement. If you need to show one report specifically to show infringement, then it’s fine to ask for that, but the judge is not going to give you a like, a blank check and and access to everything, the same thing in telecom and other areas.
Wayne Stacy 28:49
Well, then my last question would be — it seemed that when you speak about this, there was one topic that didn’t come up much, and that’s monetary damages, which always make US lawyers happy because there’s no injunction anymore. More or less I overstate that. But with the difficulties of the US injunction, the system is turned on the dollars. That’s just — you want to see monetary damages. You didn’t put much emphasis on that, Rob. What’s the status of monetary damages, practically and, I guess legally?
Rob Rodrigues 29:27
Yeah, in practical, we don’t see much, because in a system where you have a lot of preliminary injunctions and parties settle, right? Because by the end of the day, you want to be able to sell work, so that’s becomes a huge threat for you, like, the pre trial settlement that you have a lot in the US, right, once they realize something, okay, this is my — I’m not gonna try to and then they settle. The pressure of a PI makes parties settle. And so for the few cases that move forward, we have a few here. It’s a challenge to obtain the information, like the accounting documents so it can prove the damage, but in terms of calculation, at least the law they provide that should be the most beneficial way for the patent owner. And it’s a case by case basis, for instance, lost profits or entire market value. So it’s a case by case basis, but usually, at least the law says, it’s the most favorable way for patent owners.
Wayne Stacy 30:32
Well, then that makes perfect sense. It reminds me of the United States pre 2006 before eBay popped up, when injunctions were almost a matter of right, and you saw cases get resolved rather than go through these massive damages discovery processes and all the appeals. So because PIs are so rare here, minus a few areas, question for you just on — how cases typically flow. If there’s a PI that’s put in place, how often does that need to be converted to a permanent injunction? Or does the PI drive settlement more often than not?
Rob Rodrigues 31:22
It’s a good question. When you’re hitting the right buttons more often the conversion of permanent injunctions is so low because they settle. So we have a, in a telecom area at least, I would say that it’s the last years like, out of like, almost 70 cases ever filed, two or three went all the way to trial and there is usually background story behind that, right? Usually, there’s a way. There’s not. It’s not because this is something else, either because the parties hate each other so they don’t want to settle for—they want to go all in or there’s a case between DIVX and Netflix, for instance, that is spent in the US as well. And then, because of the background of the fight between the fight in the US in Brazil, they don’t settle. Has a permanent injunction in Brazil confirmed by second instance, the party is still fighting. But it’s very uncommon. It’s usually the preliminary injunction practice after you had the confirmation by the apellete board, is the moment that parties understand that they need to settle. And at the same time, if you are the other side and you lose a PI, you can always settle, but you have less leverage, right? And that’s a moment there. Maybe if you have another side, they look at that. Okay, I might spend a lot with lawyers, or I just pay this to go away. This is the moment for you to decide what to do.
Rob Rodrigues 32:48
So when you talk about how fast the Brazilian system is, there’s the — it’s fast if you go all the way through, but because the preliminary injunction is so important and that’s so quick, the system is lightning fast compared to US.
Rob Rodrigues 33:04
Yes. So you can have a resolution in six months. And since a lot of that is, I’m talking like not just local resolution, sometimes it drives a global resolution as well. Because if the client, let’s see you speaking about a company that is invested a lot to start a big operation in Brazil, and they are hit by a PI, what are they going to do, right? That’s — you have to settle so you get a pressure from the business, you get pressure from from the distributors. You get pressure from all over and then they make you, okay, I going to just pay you to go away so I can move forward and and we see that happening at the same time. There’s one interesting point that we see, but judges are very careful with public interest, right? Despite a high rate of PI, you need to make sure your case does not just jeopardize public interest in the sense that you also showing that why? For instance, like a lot of the judges ask if, in the case of the telecom area, for instance, if the patent, the company enforcing the patent, is a company that has other licensees, right? So if the license, or actually also have license for the companies because that means the license is actually in good faith? The judges are careful and a lot of times to understand that you’re not just awarding a PI to an unreasonable play chief. And in the PI practice, that’s something the judge always ask, okay, but am I a hurting consumer, and are these people gonna get out of jobs. So this is something you need to be very mindful. It’s not like it because of the high, high rate of success. People think that it’s it’s easy, but it’s actually, there’s a lot of a lot of that goes there.
Wayne Stacy 34:58
So I’d love to follow up on that. I mean, technically, the US has that public interest, and even pre 2006 at the public interest, you could usually only find the examples of those cases in law school textbooks. That was just so rare. If that’s a major issue for preliminary injunction, what happens if you win on the merits, but have a public interest problem, how do you then get any value out of your patent?
Rob Rodrigues 35:32
So the law says that you, if your PI, for instance, is revoked, you have to pay back damages based on that revocation, right? So the law provides a system where you kind of have to be sure about your right when you ask a PI otherwise, you’re gonna pay that back and the damage for that is very big. In terms of protecting public interest is conditional type of PIs, right? And some judges are actually considering, instead of, like, taking all the devices out, like, just old models, for instance, so allow — it’s case by case basis.
Wayne Stacy 36:17
Is it something the judge signals is, I’ve got a public interest problem. You guys need to settle this case or work it out?
Rob Rodrigues 36:25
Yes, yes, for sure. The hearing is for sure. Yeah, if it’s depends on the size, it’s often a background. Let’s go deep — this is an interesting topic because there’s also a concern about judges that see, but it’s also on the public interest to protect a patent, right? So there’s no blank check to come here and just, oh, if I have to comply with this PI I’m gonna have to fire people. The judges say, Yeah, but then if I don’t protect patent rights, we don’t have innovation. So that’s why it’s a case by case basis, because it’s no, there’s no blank checkup of saying that the judge will understand how serious the company applying for the PI is and the same time, what’s your efforts to settle and move right? Why you’re not just obeying? I guess it’s how, at least, of course, in any decision, there’s mistakes, right? We’re not gonna say that it’s a perfect system. But on my practice here, just really try to understand what’s the best for that case and ended up that at least in Rio de Janeiro, where I practice, mostly they are protecting IP rights in general.
Wayne Stacy 37:41
Well, Rob a fascinating, fascinating system. So you can read all day about the Brazilian system, and you don’t find these nuances in any of the writings on how things really work. So I really appreciate you being generous with your time and answering a few questions and sharing this intro material. For those that want to ask more, got Rob’s LinkedIn information. You can reach out, send some questions, but this has been a great introduction to the modern reality of what anybody in Brazil can expect. So thank you.
Rob Rodrigues 38:20
Thank you, Wayne. Appreciate the time, appreciate opportunity. Berkeley, wonderful. And yeah, let’s, let’s keep in touch.