Preliminary injunctions in SEP litigation in Brazil: essentiality, FRAND commitments, and the need for prior expert evidence

Abstract

This article examines interim relief in disputes involving standard-essential patents in Brazil, with emphasis on the relationship between essentiality, FRAND commitments, and the need for prior technical evidentiary proceedings. It starts from the premise that mere patent ownership, self-declaration before standard-setting organizations, and unilateral expert opinions are not, in isolation, sufficient to establish the likelihood of the asserted right in disputes marked by high technical complexity. The study analyzes the recent evolution of Brazilian practice, especially within the courts of Rio de Janeiro, identifying a shift from a logic of presumption to a model of structured verification, in which preliminary expert evidence, the parties’ negotiation conduct, the proportionality of the requested measure, and the risk of reverse harm assume particular importance. It argues that interim relief remains available in SEP disputes, but must be calibrated according to the degree of technical uncertainty, adherence to FRAND commitments, and the economic impact of the decision.