The protection of intellectual property is key to innovation. Investments in the research and development of new technologies are even more important during the uncertain times we are experiencing with the Covid-19 pandemic. Such protection generates benefits that go far beyond the IP owners, as it allows for technology transfers that enhance markets in all continents.
Research in Brazil is performed mainly in Universities, making the country the 13th largest producer of research publications globally, with an output that grows annually.[1] Innovation in Brazil can be fostered by placing greater emphasis on extracting value from the intellectual property system. The number of patent applications is a strong indicator of social and economic development[2], and there is plenty of room for improvement in Brazil. Fostering innovation and promoting intellectual property requires effective enforcement of the provisions set forth in the IP statute against infringement.
The remedies provided by the legal systems against patent infringement in each country will vary, but there are certain paramount points common to any jurisdiction: The remedies available (i) must have the ability to deter and discourage further acts of infringement, (ii) must adequately compensate the IP owner, and (iii) must safeguard the utility of the legal proceeding in itself, ensuring that infringement does not “pay off”.
The undisputed main remedy provided by IP law in Brazil is the preliminary injunction, chosen by the Brazilian Congress.[3] The different economic, social, and political realities in each country make it very difficult, if not impossible, to compare remedies available across different jurisdictions. No matter the remedy chosen by the law of each country, the predictability and legal certainty of effective enforcement of IP protection will have a crucial impact on innovation – as well as on the ability of the IP system to promote technical and social development.
The preliminary injunction set forth by the BR IP statute (Article 209, first paragraph) is part of a legal framework that provides preliminary relief as part of any complaint, foreseen in Article 300 of the Brazilian Civil Procedure Code, which applies to any area of law. These statutory provisions require the grant of a preliminary injunction upon prima facie evidence of infringement
The law also requires periculum in mora (risk of irreparable harm), not only for the IP owner, but also for the effectiveness and utility of the adjudication. The abundant number of appeals available (interim and final) creates the possibility of a scenario where, in the absence of a preliminary injunction, the infringer could be encouraged to promote severe delays in court proceedings.
The remedies provided by the BR IP statute have been consistently granted by courts.[4] Brazil is a country of civil law and it is worth remembering that the balance of hardships and the public interest in the statute must not be disregarded. The remedies provided by the law of each country must be enforced without hesitation, in order to allow the IP system to develop its paramount role of promoting social and technological development.
Written by Carlos Aboim (Partner), Renata Carvalho (Attorney), Rodolfo Barreto (Attorney) and Pedro Gomes
[1]https://www.capes.gov.br/images/stories/download/diversos/17012018-CAPES-InCitesReport-Final.pdf
[2]https://www.wipo.int/ipstats/en/statistics/country_profile/profile.jsp?code=BR
[3]Article 209, § 1º. The judge may, in the formal record of the same action, so as to avoid irreparable damages or damages that would be difficult to recover, grant an injunctive order to suspend the violation or act that has such in view, before summonsing the defendant, against, if judged necessary, monetary caution or a fiduciary guarantee.
[4]STJ. REsp nº 1.315.479/SP.