Conflict resolution in SEP disputes: the impacts and purposes of the injunction wars observed in disputes within brazilian territory and the consequences of these judicial interventions from a global perspective

Abstract

This article examines the “injunction war” that currently characterizes disputes involving standard-essential patents (SEP) and fair, reasonable and non-discriminatory (FRAND) licensing, focusing on litigation within Brazilian territory and its consequences from a global perspective. Drawing on landmark Brazilian cases – notably Ericsson v. Apple and DivX v. Netflix – and comparing them with the leading frameworks of Huawei v. ZTE in the European Union and Unwired Planet v. Huawei in the United Kingdom, it investigates how parties design forum strategies, simultaneous filings and urgent measures – including anti-suit and anti-anti-suit injunctions – within an architecture of structured global litigation. It argues that the preliminary relief provided for in the Brazilian Code of Civil Procedure has turned procedural time into a strategic bargaining asset, positioning Rio de Janeiro as a relevant forum in the transnational dispute. In conclusion, the strategic use of various dispute resolution mechanisms is proposed, particularly those that integrate and enable dialogued solutions built on consensus (negotiation and mediation), as opposed to the adversarial response typical of judicial disputes and arbitrations, as ways to: rebalance the contractual and relational positions of market players (necessarily interdependent, given the essential nature and pattern of technological solutions); harmonize interests and resolve conflict, mitigating the disruptive effects of preliminary injunction litigation in the Brazilian context.