Standard-Essential Patent Abuse in Brazil: From Comparative Responses to Domestic Instruments

Abstract

Standard-essential patents (SEPs) occupy a distinctive position in contemporary industrial property law. Once incorporated into technical standards that organize interoperability, compatibility, safety, quality and scalability across products, services, infrastructures and production chains, such patents may confer on their holders bargaining power that transcends the ordinary logic of patent exclusivity. The topic is particularly relevant in light of the growing number of SEP disputes in Brazil and the country’s increasing visibility in transnational litigation concerning the licensing of standardized technologies. This article examines how the abuse of patent rights may be understood and addressed in Brazil through disputes involving SEPs and fair, reasonable and non-discriminatory (FRAND) licensing commitments. Adopting a functional comparative method, it systematizes responses developed in comparative law - including the adjustment of injunctive relief, royalty determination, sanctions for breach of FRAND commitments, competition remedies and patent unenforceability -, identifies the functions each response performs, and assesses how those functions may be translated into the Brazilian legal framework through existing domestic instruments. The article proposes a dogmatic-functional matrix of six analytical axes and argues that, while Brazilian law lacks a specific regime for SEPs, its normative architecture, grounded in the economic function of patents, objective good faith, proportionality, competition law and the repression of abuse of economic power, provides sufficient basis for coherent legal responses, subject to identified gaps that call for further doctrinal development.