Early Expert Evidence in SEP Disputes

Efficiency, Proportionality, and the FRAND Filter

Abstract

This article examines the early production of technical expert evidence in patent disputes, particularly in cases involving Standard Essential Patents (SEPs). Gabriel Di Blasi argues that the early taking of expert evidence is a legitimate procedural mechanism capable of enhancing judicial efficiency by enabling courts to understand complex technical matters before deciding on urgent measures. In ordinary patent disputes, early expert evidence may promptly verify potential infringement and support the granting of injunctive relief. However, the article emphasizes that this rationale cannot be automatically extended to SEP disputes, since SEPs are incorporated into indispensable technological standards for which no viable technical alternatives may exist. In such cases, preventing the use of technology may effectively exclude entire companies from the market. Accordingly, early expert evidence should operate as a “technical filter,” assessing not only infringement, but also the essentiality of the patent, the parties’ conduct during FRAND negotiations, and the competitive impacts of the requested relief. Based on international precedents and the Brazilian Code of Civil Procedure, the article argues that decisions in SEP litigation must observe proportionality, good faith, and public interest, avoid automatic injunctions and prioritize technically grounded and economically balanced solutions.