Interim Relief in SEP Litigation in Brazil: Essentiality, FRAND Commitments, and the Need for Prior Expert Evidence

Resumo (Abstract em Português)

This article examines preliminary injunctions in litigation involving standards-essential patents in Brazil, with an emphasis on the relationship between essentiality, FRAND commitments, and the need for prior expert evidence.

It begins with the observation that mere patent ownership, self-declaration to standards organizations, and unilateral opinions are not sufficient, on their own, to demonstrate the likelihood of success in disputes marked by high technical complexity. The study analyzes recent developments in Brazilian practice, particularly within the Rio de Janeiro judiciary, indicating a transition from a presumptive approach to a model of structured verification, in which preliminary expert evidence, analysis of the parties' negotiating conduct, the proportionality of the measure, and the risk of reverse damage take on greater importance. It is argued that provisional relief remains available in SEP disputes but must be calibrated according to the degree of technical uncertainty, adherence to FRAND commitments, and the economic impacts of the requested measures.

Keywords: essential patents; emergency relief; essentiality; FRAND commitments; technical evidence.

Abstract

This article examines interim relief in disputes involving standard-essential patents in Brazil, with an emphasis on the relationship between essentiality, FRAND commitments, and the need for prior technical evidentiary proceedings. It begins with the premise that mere patent ownership, self-declarations before standard-setting organizations, and unilateral expert opinions are not, in isolation, sufficient to establish the likelihood of the asserted right in disputes characterized by high technical complexity. The study analyzes recent developments in Brazilian practice, particularly within the courts of Rio de Janeiro, identifying a shift from a presumptive approach to a model of structured verification, in which preliminary expert evidence, the parties' conduct during negotiations, the proportionality of the requested measure, and the risk of reverse harm take on 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.

Keywords: Standard-essential patents; preliminary injunctions; essentiality; FRAND commitments; expert evidence.

1. Introduction

In recent years, Brazil has come to occupy an increasingly prominent position on the global stage of litigation involving patents essential to technological standards, also known as SEPs: Standard Essential Patents (SEPs).

The growth of digital connectivity, the expansion of fifth-generation mobile networks, and the incorporation of standardized technologies into connected vehicles, smart devices, and artificial intelligence applications have significantly increased the economic significance of these disputes.

At the same time, the increasing judicialization of disputes involving SEPs has brought before Brazilian courts issues that have yet to be fully explored by national legal doctrine. Among these, the definition of appropriate criteria for granting emergency injunctions in infringement actions involving patents declared essential to technological standards stands out.

This issue is particularly relevant because an allegation of infringement typically depends on the analysis of complex technologies, the interpretation of international technical specifications, and the verification of the actual essentiality of the patent in question. Added to this is the existence of licensing commitments made to standards-setting organizations, commonly referred to as FRAND (fair, reasonable, and non-discriminatory) commitments.

This article seeks to examine recent developments in Brazil regarding the granting of emergency relief in "SEP litigation," analyzing the requirement of a probable cause of action based on patent ownership, the patent holder's self-declaration of essentiality, the degree of technical verification of essentiality, the analysis of infringement, and consideration of the parties' negotiating conduct in light of FRAND commitments.

2. Interim Relief in Litigation Involving SEPS

Emergency relief plays a central role in the procedural strategy of litigation involving standard-essential patents. In several countries, the possibility of obtaining injunctive relief in summary proceedings constitutes an important mechanism for exerting pressure in negotiations and directly influences the dynamics of licensing negotiations.

However, unlike traditional patent disputes, SEP litigation involves complex technologies that are often embedded in products comprising thousands of interdependent features. In such circumstances, assessing the alleged infringement requires a high degree of technical expertise, which is not always compatible with the summary adjudication typical of preliminary injunction decisions. The difficulty is compounded by the fact that the alleged essentiality of the patent initially stems from statements made by the patent holder itself to standards-setting organizations, without there necessarily being an independent technical validation of that status.

The combination of these factors reveals that applying traditional criteria for emergency relief to disputes involving essential patents requires interpretive adjustments compatible with the unique nature of such disputes.

In contexts where the very essentiality of the patent and the existence of infringement remain technically disputed, the likelihood of success does not appear to be automatically derived from mere patent ownership or the existence of unilateral declarations of essentiality. Although in the recent past the trend in court practice involving SEPs was to grant emergency injunctions based solely on such evidence, the current situation is somewhat different.

Given the technical uncertainty regarding essentiality and infringement, the Brazilian judiciary-especially in Rio de Janeiro, where cases of this nature are concentrated-has been shifting away from the approach initially adopted and postponing the review of such preliminary injunctions, since the aforementioned uncertainties have come to play a significant role in forming a conviction regarding the plausibility of the claim asserted.

This observation stems from the very logic underlying Article 300 of the Code of Civil Procedure. If provisional relief presupposes a determination of plausibility regarding the right invoked, the weight of that determination cannot be separated from the degree of technical controversy surrounding the facts supporting the claim brought before the court. In SEP litigation, demonstrating the likelihood of success often depends on proving highly specialized issues, such as the actual essentiality of the patent to the technical standard invoked and the implementation of the claimed technology in the accused product-circumstances that can often only be adequately clarified through specialized technical investigation.

On the other hand, the analysis of the risk of harm also does not appear to be limited to the damages allegedly suffered by the patent holder. In disputes involving complex technological products, marketed on a large scale and integrated into global supply chains, the granting of preliminary injunctions can produce significant and potentially irreversible economic effects even before a minimally reliable technical determination regarding the infringement or the essentiality of the patent has been reached.

The removal of products from the market, the interruption of imports, the suspension of commercial activities, or even the disruption of contractual relationships established across extensive production chains are examples of potentially serious consequences arising from the hasty granting of injunctive relief in summary proceedings.

Rather than a single model, recent practice reveals a diverse range of decision-making approaches: in some cases, consideration of the preliminary injunction is deferred until preliminary technical evidence is produced; in others, an intermediate solution is allowed through a deposit, bond, or other measures to prevent consequential damages; and, in specific cases, injunctive relief is granted following a more robust adversarial process, including consideration of the parties' procedural and negotiating conduct.

From this perspective, the discussion of emergency relief in SEP litigation necessarily involves an analysis of the essentiality of the asserted patent. After all, if the alleged indispensability of the technology to the technical standard constitutes one of the main grounds for the likelihood of success asserted by the patent holder, it becomes essential to examine to what extent essentiality can be presumed based on statements made before standard-setting organizations or whether, on the contrary, it requires independent technical verification before the adoption of potentially irreversible measures.

2.1 The Role of Standard-Setting Organizations (SSOs)

Understanding the role played by standards-setting organizations is a necessary starting point for examining disputes involving patents essential to technical standards. This is because the classification of a patent as essential to a given technical standard does not arise in the abstract, but within a specific institutional environment, in which the technical specifications to be adopted by the market are defined, the disclosure obligations regarding potentially relevant intellectual property rights are regulated, and licensing commitments are established that may later become significant in litigation.

In general terms, technical standards consist of sets of technical specifications designed to ensure compatibility, interoperability, and predictability in the interaction between products, services, and processes developed by different economic actors. Standardization enables technologies developed by different companies to operate in a coordinated manner, which is particularly important in sectors characterized by intense connectivity, product complementarity, and strong network effects such as telecommunications and various segments of the digital economy. From this perspective, standardization fulfills an important economic function not only by promoting interoperability among technologies, but also by reducing transaction costs, expanding the scale of markets, and enabling the dissemination of common technical solutions across complex production chains.

It is within this context that so-called standard-setting organizations or standard development organizations ("SSOs" or "SDOs") operate-entities dedicated to the development, review, consolidation, and administration of technical standards. Although they have distinct institutional structures, such organizations bring together, to a greater or lesser extent, manufacturers, developers, technology companies, intellectual property rights holders, operators, research centers, and other industry participants, functioning as forums for technical coordination aimed at establishing common specifications for a given market or technology segment. In sectors characterized by cumulative innovation and interoperability, the role of these entities is particularly sensitive, as the technical standards produced there tend to influence both the direction of technological development and the conditions of market access for their implementers.

In the world of telecommunications and information technology, the European Telecommunications Standards Institute (ETSI), the Institute of Electrical and Electronics Engineers (IEEE), and the International Telecommunication Union (ITU), among others, deserve special mention.

Alongside these organizations, the 3rd Generation Partnership Project (3GPP) is of particular importance, and its position within the mobile telecommunications ecosystem warrants brief mention. The 3GPP does not present itself strictly as a single standardization organization in the traditional sense, but rather as a cooperative framework among seven partner organizations, dedicated to developing reports and technical specifications for mobile technologies, including, among others, 3G, 4G/LTE, and 5G. The dynamics of 3GPP are particularly important for the issue of standard-essential patents because a significant portion of contemporary litigation in this area is associated precisely with technologies developed within the scope of its specifications.

The development of a technical standard generally involves an incremental and cooperative process, in which different participants submit technical contributions, discuss alternatives, propose revisions, and seek, over time, to converge on specifications capable of ensuring interoperability among the products or services to be launched on the market. The reference to the standardization process is relevant because it highlights that a technical standard does not correspond to the simple adoption of an isolated technology, but rather to the result of an institutional arrangement aimed at coordinating multiple contributions around a common architecture.

This cooperative environment, however, does not develop in isolation from intellectual property rights. On the contrary, technical solutions submitted to the standardization process are often protected by already granted patents or pending patent applications, owned by the organization's participants themselves. It is precisely for this reason that SSOs typically include, in their intellectual property policies, mechanisms for disclosing patents or patent applications that are potentially relevant to the standard under development.

In the case of ETSI, for example, the applicable policy provides for the disclosure of patents that are or may become essential, without the organization conducting an independent technical verification of the information provided at the time of the declaration. Members must report, in a timely manner during the proceedings, the existence of essential intellectual property rights of which they are aware, including when they submit a technical proposal that may be incorporated into the standard.

The IEEE's policy follows a similar logic by requiring, in the context of its standardization work, the identification of potential Essential Patent Claims, while making it clear, however, that the organization does not, at the time of the declaration, make its own judgment regarding the validity, essentiality, or interpretation of the indicated patent. Within the ITU, in turn, the common patent policy and the declaration and licensing forms similarly seek to ensure that information on patents potentially relevant to technical recommendations is made available to participants and interested parties.

The need to disclose intellectual property rights in the context of standardization is often explained by the strategic position a patent can assume when the technology it protects is incorporated into the standard. Once the standard is adopted and its implementation becomes widespread in the market, replacing that technical solution with a different alternative may become economically costly, technically undesirable, or, in certain cases, unfeasible. The policy of disclosing patent titles (even if only potential ones) thus seeks to reduce information asymmetries and allow the standard-setting organization and other participants to be aware, at least in theory, of the existence of assets that may affect the implementation of the standard, creating conditions for the issue to be addressed within the SSO's own institutional framework, including from the perspective of licensing commitments.

Indeed, it is within this environment that patents essential to technological standards emerge.

Generally speaking, a patent is considered essential if its use is necessary for the implementation of a given technical standard. The concept of essentiality, therefore, presupposes a specific relationship between the patent's content and the standard's technical specifications, such that the implementation of the standard falls within the scope of protection of that patent.

At the level of standards-setting organizations, however, the initial identification of these patents typically occurs through the self-declaration mechanisms provided for in their intellectual property policies, rather than through independent technical verification conducted by the organization itself. It is this dynamic that largely explains the central role of SSOs in the study of patents essential to technological standards: it is within these forums that we find, on the one hand, the process of standard-setting and, on the other, the institutional mechanisms for addressing intellectual property rights that may affect their implementation.

The relationship between technological standardization and innovation, in turn, is not limited to the disclosure of patents. Standardization, on the one hand, can promote the dissemination of common technical solutions, enhance compatibility among products, and reduce barriers to entry associated with technological fragmentation. On the other hand, the incorporation of patented technologies into standards preserves at least in theory-private incentives for investment in research and development, insofar as it allows the patent holder to receive compensation for the use of technology deemed necessary for the implementation of a standard.

The balance between these two factors-the standardized dissemination of technology and the preservation of incentives for innovation-constitutes one of the foundational elements of the contemporary debate on patents essential to technological standards and helps explain the significance this field has assumed, in this field, of mechanisms for the disclosure of rights, FRAND commitments (which will be discussed below), and litigation surrounding essentiality, infringement, and licensing.

3. Essentiality as a Prerequisite for Emergency Relief

The analysis of essentiality occupies a unique position in litigation involving SEPs. Unlike conventional patents, an allegation of infringement is often based on the premise that the implementation of a particular technical standard necessarily involves the use of the claimed technology.

For this reason, essentiality often emerges as a central element in demonstrating the likelihood that the right asserted by the patent holder will prevail. However, international experience shows that essentiality is not a presumed or uncontroversial characteristic of a patent. On the contrary, it is an eminently technical issue, often subject to intense specialized debate.

As mentioned earlier, essentiality presupposes, in the strict sense, the finding that the implementation of a given technical standard requires the use of the technology claimed in the patent. Verification of this relationship of indispensability generally depends on a substantive examination of the content of the claims and their comparison with the relevant technical specifications. On the other hand, self-declaration mechanisms are not typically designed to replace this type of analysis, but rather to enable the identification, at the institutional level, of assets that are potentially relevant to the standard under development or already established.

One of the most recurring issues is that of "over-declaration," an English term used to describe the situation in which the set of patents declared essential exceeds the set of patents whose essentiality would be confirmed after a more detailed technical examination. Studies conducted using databases related to telecommunications standards have indicated that this phenomenon may stem from various factors, including the breadth of the disclosure rules adopted by certain SSOs, the fact that the declaration often occurs at a time when the standard is still under development or the scope of the patent application has not yet been definitively defined, as well as the absence, in many systems, of independent technical verification of the submitted declarations.

The reference to "over-declaration," however, does not in and of itself lead to the conclusion that self-declaration systems are inaccurate or useless. What the foreign literature seems to indicate, more carefully, is that such systems operate according to their own logic, aimed at disclosing potentially relevant rights and organizing the licensing environment, rather than at exhaustively certifying the essentiality of each declared patent. In other words, any discrepancy between the set of declared patents and the set of patents whose essentiality would be confirmed following technical analysis does not negate the institutional importance of disclosing such patent titles, but it does call for caution regarding the scope of the inferences one seeks to draw from these databases, especially when the essentiality of the patent is disputed.

In summary, self-declaration systems play a significant role in the governance of patents essential to technological standards, insofar as they enable the disclosure of rights that may apply to technical standards and, to some extent, structure the licensing environment that arises from them. This does not, however, preclude the need to distinguish the informative function performed by such mechanisms from the technical verification of the actual essentiality of the declared patent.

The distinction between these two levels is particularly relevant for analyzing disputes in which the essentiality of the patent is contested, including in the context of judicial relief; after all, although they play an absolutely relevant and indispensable role in the functioning of standardization systems, self-declaration mechanisms were not designed as instruments for the technical certification of the actual essentiality of the declared patents.

4. The Risk of Reverse Damages and the Principle of Proportionality

The granting of preliminary injunctions in SEP disputes must require special attention to the risk of reverse damage.

In markets characterized by high technological integration, a court order issued in summary proceedings (especially without a hearing of the opposing party) intended to halt the sale of products can have significant impacts not only on the parties directly involved but also on consumers, distributors, operators, and other economic actors within the production chain. In such cases, any error in the initial assessment of the infringement or of the essentiality of the patent may lead to irreversible consequences that are difficult to remedy.

Striking a balance between the protection of patent rights and the preservation of competition therefore requires a particularly careful examination of the requirements for granting emergency relief. In disputes involving complex products integrated into extensive production chains, the risk of reverse damage extends beyond the individual harm suffered by the defendant company that implements the technological standard.

Depending on the sector and the technology implemented, a preliminary injunction may affect imports and exports, distributors, retailers, operators, service providers, consumers, and contractual partners, causing economic disruption that far exceeds the bilateral scope of the proceedings. It is precisely for this reason that, in disputes involving SEPs, the assessment of periculum in mora does not appear to be one that should be conducted according to the same logic traditionally applied to simpler patent disputes, in which the subject matter of the dispute is typically technologically isolatable and economically less widespread.

The problem takes on even more sensitive dimensions when one considers that, in actions of this nature, the preliminary injunction often precedes the formation of a minimally reliable technical conviction regarding the actual essentiality of the patent and the presence of infringement. In other words, an emergency injunction may be granted at a time when it is not yet known-based on independent and impartial verification-whether the protected technology is, in fact, indispensable to the standard invoked or whether the accused product effectively implements the content of the claims.

In this context, the risk of the improper removal of products from the market ceases to be a mere abstract hypothesis and becomes a plausible consequence of the very limited scope of review that characterizes the granting of a preliminary injunction.

Recent Brazilian experience offers relevant examples of how this risk has been progressively internalized by the judiciary.

As will be demonstrated in detail in a later chapter, initially, part of legal practice sought to mitigate reverse damages through intermediate solutions, in which the right of the patent holder to prevent unauthorized use of the patent was recognized in summary proceedings, but the alleged infringer was left with the choice of whether or not to cease the commercial exploitation of the product until a subsequent technical resolution of the dispute. Although this model did not eliminate all possible distortions, it already reflected the judicial perception that the immediate imposition of an unrestricted injunction could prove excessively burdensome before the evidentiary basis had been established.

From this perspective, the principle of proportionality assumes a central methodological role. It requires the judge to examine not only whether the measure is potentially capable of protecting the alleged right, but also whether it is necessary and appropriate given the degree of technical uncertainty still present in the proceedings and the concrete effects it may have on the economic activity of the opposing party and third parties. The greater the reliance on expert evidence to assess the essentiality of the right and the infringement, the greater the need for caution in granting injunctions with immediate effect.

The protection of patent rights, in this context, does not disappear-nor could it, since it is a legal guarantee provided for by the Brazilian industrial property protection regime. However, the balance of justice comes into play, as this guarantee must now coexist with a reinforced duty of judicial restraint in light of the risk that the provisional relief itself may produce a more severe outcome than the one it seeks to avoid.

Proportionality, in this context, operates not merely as an abstract clause for balancing conflicting interests, but as a concrete factor in shaping the judicial remedy. Recent experience indicates that the Brazilian judiciary has resorted to intermediate procedural solutions to reduce the cost of erroneous decisions, notably when the immediate removal of a product from the market could generate disproportionate economic effects before a minimally reliable technical basis has been established. Among these solutions are the substitution of an emergency injunction with a security deposit or judicial escrow, as well as the deferral of the review of the measure until after technical evidence has been presented within an expedited timeline.

Such techniques do not imply a denial of patent protection, but rather a recognition that, in an environment of technological standardization, the intensity and form of provisional protection must be calibrated in light of the risk of reverse harm, the structure of the affected market, and the practical reversibility of the decision's effects. Provisional relief, thus, is no longer conceived merely as a linear anticipation of the right of exclusion but is instead treated as an instrument whose form depends on the degree of technical uncertainty still remaining in the proceedings.

5. The Role of FRAND Commitments in the Analysis of Emergency Relief

The maturation of the SEP litigation system in the Brazilian judiciary has confirmed that the discussion of preliminary injunctions in this context should not be separated from the FRAND commitments made by patent holders to standards-setting organizations.

By declaring a particular patent to be (potentially) essential to a technical standard, the patent holder typically assumes the obligation to grant licenses on fair, reasonable, and non-discriminatory terms.

Although there are differences of opinion regarding the exact legal nature of these commitments, there appears to be a growing consensus that they directly influence the analysis of the legitimacy of exercising the right of exclusion.

FRAND commitments generally correspond to the commitment made by the owner of a patent declared essential to grant a license for that technology on fair, reasonable, and non-discriminatory terms.

This is a mechanism traditionally provided for in the intellectual property policies of standards-setting organizations, through which they seek to regulate-within the context of the development and implementation of technical standards-the licensing of technologies whose use is necessary for compliance with the standard.

The relevance of these commitments stems from the very context in which patents essential to technological standards arise. As noted, the incorporation of a particular technical solution into a standard can confer a unique economic position on its owner, insofar as the implementation of the standard by third parties comes to depend-at least in theory-on access to the protected technology. It is precisely in this context that FRAND commitments come into play: not as a denial of patent protection, but as an instrument designed to reconcile the exercise of exclusive rights with the logic of interoperability and technological dissemination inherent in standardization.

From this perspective, the function of FRAND commitments is to establish parameters for the licensing of technologies declared essential, so as to reduce the risk that the incorporation of the patent into the standard will produce market distortions incompatible with the cooperative dynamic that characterizes the activities of standards-setting organizations. While preserving the patent holder's right to compensation for the use of their technology, these commitments seek to ensure that access to the standard is not impeded by arbitrary, discriminatory, or economically unreasonable conditions that are out of step with the context in which the technology was incorporated into the standard.

The development of this model stems from the recognition that technological standardization, while generating clear gains in interoperability, efficiency, and market expansion, can also significantly alter the balance of power between the patent holder and the implementer. This is because, once the standard is established and its implementation widespread, a company interested in operating in that market no longer negotiates access to just any technology but instead becomes dependent on a technical solution that is presented as necessary for its product or service to comply with the standard. From that point on, the literature began to identify the risk that the declared essentiality of the patent would be exploited opportunistically, especially in contexts where the cost of replacing the technology or abandoning the standard had already proven to be high.

It is within this context that the debate on patent hold-up is typically situated. Broadly speaking, the term is used to describe the situation in which the holder of an essential patent, taking advantage of the strategic position acquired by having its technology incorporated into the standard, begins to demand licensing terms that reflect not only the value of the invention itself but also the costs of adaptation, redesign, or exit from the market faced by the implementer after the standard has been established. The underlying concern is that the holder's bargaining power, in this context, no longer stems exclusively from the technical or economic merit of the invention but is instead influenced by the dependency created around the standard already widespread in the market.

On the other hand, recent literature and practice have also begun to focus on the phenomenon of "hold-out," a term usually associated with conduct attributed to the implementer who, instead of effectively negotiating to obtain a license, would take advantage of the complexity, length, or costs of litigation to delay the payment of royalties or resist entering into a contract, even while continuing to exploit the standardized technology. From this perspective, the discussion no longer focuses solely on the limits to the patent holder's exercise of the right of exclusion but also encompasses how the implementer behaves during the course of negotiations.

As will be discussed below, the most recent precedents in the Rio de Janeiro judiciary further indicate that the debate over FRAND is now producing autonomous and concrete procedural effects. The invocation of the obligation to license on fair, reasonable, and non-discriminatory terms is no longer confined to the general argumentative framework of good faith but now influences the very organization of the evidentiary phase, the allocation of the burden of proof, and the determination of the degree of judicial intervention permissible in preliminary injunctions.

This shift is significant because it shows that, in SEP litigation, the analysis of the exercise of the right of exclusion is no longer limited to an abstract verification of title ownership or the alleged implementation of the technology. In certain cases, the patent holder is now required to present minimally verifiable evidence regarding its negotiating conduct, the economic rationality of the offer made, and the absence of undue discrimination against comparable licensees.

5.1 FRAND Negotiations and Preliminary Injunctions: Is There a Duty to Exhaust Negotiations?

One of the most debated issues today is determining to what extent the parties' negotiation history should influence the granting of injunctive relief in SEP litigation. The issue takes on particular relevance when one considers that the FRAND commitment presupposes the patent holder's willingness to grant licenses and, simultaneously, the implementer's willingness to negotiate reasonable terms.

In this context, the question arises as to whether there is a duty to make a genuine attempt at negotiation before taking the dispute to court or seeking measures capable of restrict the other party's economic activities. Framing the debate in terms of a "duty to exhaust negotiations," however, requires caution. Strictly speaking, it does not always seem appropriate to make access to judicial relief contingent upon demonstrating that all possibilities for settlement have been effectively exhausted.

What is more consistent with the logic of FRAND commitments is the requirement that the party seeking an injunction demonstrate, in a minimally consistent manner, that it has engaged in a serious, transparent negotiation effort consistent with the commitment made to the standards organization. Rather than absolute exhaustion, what emerges is a heightened burden of argument and proof regarding the quality of the pre-litigation negotiation process.

This distinction is relevant because it avoids two equally problematic extremes. On the one hand, it prevents the holder of an essential patent from seeking an injunction in summary proceedings as a primary means of pressure without demonstrating that it has offered the implementer effective access to a license on terms consistent with FRAND. On the other hand, it also prevents the implementer from hiding behind indefinitely protracted negotiations to render, in practice, any judicial response by the holder unfeasible. Judicial review of the negotiation history, therefore, should not serve to reward opportunistic strategies by either party, but rather to determine whether there was conduct consistent with objective good faith and the cooperative rationality inherent in the standard-setting environment.

As discussed below, the most recent Brazilian experience appears to be moving precisely in this direction. In decisions rendered by the commercial courts of the Judicial District of Rio de Janeiro, the patent holder is now required, as early as the initial stage of proceedings, to provide a more concrete demonstration of how its conduct is consistent with FRAND, with particular emphasis on the existence of licensing offers, the economic coherence of those offers, and the need to rule out evidence of discriminatory treatment between parties in equivalent positions. On another front, local case law has turned to the early submission of expert evidence as a mechanism for calibrating injunctive relief in technically complex patent disputes.

In this vein, the discussion regarding preliminary injunctions no longer focuses exclusively on the abstract existence of the patent and instead incorporates, in a more incisive manner, the commercial context in which the right of exclusion is being exercised. In this context, invoking the FRAND commitment no longer serves merely as a rhetorical argument to oppose a preliminary injunction but now requires a minimally consistent documentary demonstration, sufficient to allow the court to examine the chronology of negotiations, the existence of offers and counteroffers, the economic coherence of the proposed terms, and the possible presence of discriminatory treatment.

6. Recent Brazilian Experience: From Presumption to Technical Verification

Recent Brazilian experience seems to indicate not a consolidated uniformity in decision-making, but a noticeable trend toward methodological sophistication in the handling of emergency injunctions in SEP disputes. This trend is reflected in the growing emphasis on independent technical evidence, greater attention to the parties' negotiating context, and the search for procedural techniques capable of reducing the risk of premature decisions in disputes characterized by a high degree of technical and informational complexity.

Early cases involving patents declared essential were often accompanied by motions for preliminary injunctions based on unilateral technical opinions, declarations of essentiality, and documentation produced by the patent holder itself. More recently, however, there has been a gradual shift toward valuing independent and impartial judicial technical expert evidence as a tool for verifying essentiality and infringement before adopting potentially irreversible measures.

The vast majority of Brazilian lawsuits addressing the infringement of essential patents are concentrated in the Court of Justice of the State of Rio de Janeiro, which, over the past few years, has gradually become more familiar with and specialized in the subject due to the increase in litigation of this nature.

Although the discussion in Brazil is extremely new compared to judicial practice in other countries, what can be observed from the judicial practice in Rio de Janeiro up to mid-2025 is that the Brazilian judiciary had consistently adopted a position that was, in general, similar to that adopted by Germany. That is to say that, of the decisions rendered up to that point, a large portion absolutely favored patent holders-even in summary proceedings-without considering the specific characteristics of the patent ecosystem, particularly regarding non-practicing entities (NPEs) that have been enforcing patents in the country.

However, unlike the German scenario, Brazilian preliminary injunctions had been divided into two types. In one type, the courts ordered the absolute cessation of all economic exploitation of the allegedly infringing product model until the merits of the case were analyzed, under penalty of a daily fine. In the other, the courts left it up to the alleged infringer to decide whether to completely cease the sale (as well as all other acts of commercial exploitation) of the product in question, if that economic agent believed it was not infringing the patent at issue. These decisions, recognizing the clear risk of reverse harm arising from an unrestricted court order mandating the cessation of the manufacture, importation, promotion, and sale of products that allegedly reproduce an essential patent without the patent holder's due authorization, required the defendant to refrain from using the technology in dispute, under penalty of a daily fine.

Although this is a subtle distinction, the judges-guided by the reasoning used by the plaintiffs in such cases-justified that if the defendant is confident that it does not infringe the patent in question, it could continue to engage in acts of commercial exploitation during the course of the litigation. Thus, there would be no risk of reverse damage. If the evidentiary stay subsequently revealed the existence of an infringement, the daily fine would then be imposed. Thus, the effects of this second type of decision would only materialize if the infringement were confirmed by an impartial technical expert report and subsequently corroborated by the court at the conclusion of the proceedings.

The judiciary, thus, would have supposedly found a way to balance the rights of the parties. To the extent that it would ensure, in summary proceedings, the application of Article 42 of the Industrial Property Law (LPI) regarding the right of the patent holder to prevent third parties from exploiting their patent without proper authorization (combined with the preliminary relief provided for in Article 209, § 1 of the same law), it would also not encourage the possibility of reverse damages, by leaving it up to the defendant implementing the technological standard to decide whether or not to continue marketing the allegedly infringing product until the merits of the case were analyzed.

In 2022, the Superior Court of Justice ruled for the first time on the controversy surrounding injunctive relief in a dispute involving the infringement of SEPs (and, in this specific case, those related to the 5G standard). Setting a historic precedent for the Brazilian judiciary, the 4th Panel of the STJ affirmed the need to weigh the scales of justice, "with the aim of balancing the competing interests" that, on the one hand, belong to Ericsson, the plaintiff, and, on the other, to Apple, which was then the defendant in the case.

By partially reinstating the preliminary injunction granted by the Rio de Janeiro State Court of Justice, the justices responsible for ruling on the appeal prioritized the core right to prevent third parties from infringing. However, after weighing the risk of harm to Ericsson against the risk of harm to Apple, the latter was permitted to continue selling its devices that implemented the 5G standard in Brazil, provided it paid Ericsson US$3 for each product sold on Brazilian soil until the merits of the case (that is, whether or not an infringement had occurred) were resolved.

Following the STJ's ruling, the parties announced that they had reached a global licensing agreement covering the SEPs involved in the dispute-thereby bringing to a close not only the Brazilian lawsuit but also several others that had been filed around the world. This decision, in addition to representing an important milestone in Brazilian case law on the subject, reflects the central argument of this study: the need to balance the interests of both parties to the dispute, weighing the particularities of the microsystem of patents essential to technological standards and the specific case, each on one side of the balance of power.

Furthermore, the STJ's ruling, followed by the global patent licensing agreement between Ericsson and Apple, also reflects the veritable race for preliminary injunctions taking place worldwide and for several years now in Brazil as well. The race for preliminary injunctions is the grand prize sought by SEP holders, often more valuable than the analysis of the infringement itself, which is not always concluded due to the conclusion of global settlements during the course of the litigation.

Nevertheless, beginning in mid-2025, the Rio de Janeiro judiciary-particularly within the commercial courts of the Capital District-began to adopt an alternative approach to decision-making from that traditionally associated with granting preliminary injunctions in cases involving SEPs.

Instead of automatically granting injunctive relief based on a summary determination, Rio de Janeiro judges have preferred to postpone consideration of the preliminary injunction request until after preliminary technical evidence-even if simplified-has been submitted. This shift stems from the judge's explicit recognition that the underlying dispute in this specific type of litigation-assessing whether the patent meets the technological standard, verifying infringement, and, above all, compliance with the a FRAND licensing commitment-depends on an eminently technical question that cannot be reliably resolved through a cursory review without the assistance of an expert.

Thus, if, in the initial phase of these cases, practice revealed quite heterogeneous solutions with preliminary injunctions granted without prior technical investigation, others conditioned on an initial expert opinion, and decisions that oscillated between ordering the immediate cessation of the activity and alternative solutions aimed at neutralizing the economic risks of the measure the most recent trend appears to be moving toward greater methodological uniformity in the conduct of these proceedings.

A first sign of this shift lies in the central role now attributed to technical evidence from the very outset of the dispute. Rather than treating emergency relief as a matter that can be resolved solely on the basis of opinions and documents unilaterally produced by the parties, the court has begun to indicate that, at least in actions of this nature, the assessment of the preliminary injunction must be preceded by a simplified expert evaluation, pursuant to Article 464, paragraph 2, of the Code of Civil Procedure, aimed at providing minimal technical support for the formation of judicial conviction. This is clearly not a matter of anticipating the exhaustive expert examination that will take place during the proceedings, nor of transforming summary adjudication into a full-scale investigation, but rather of recognizing that, in disputes involving patent infringement in the context of standardized technology, the likelihood of success can hardly be satisfactorily assessed without some degree of independent technical validation.

In such cases, the analysis of fumus boni iuris is no longer limited to a comparison between the patent and the product or functionality alleged to be infringing; rather, it now more explicitly incorporates the very status of the SEP as a legally relevant element in the organization of the evidence. Based on this logic, the Rio de Janeiro courts appear to be operating under the premise that, when the plaintiff claims to hold a standard-essential patent for a given standard, the plaintiff bears not only the burden of proving infringement but also that of demonstrating that the exercise of its right remains consistent with the commitments made within the standard-setting environment, particularly with regard to licensing under FRAND terms.

This point is important because it shifts, at least to some extent, the focus of the discussion. The issue is no longer merely whether the technology implemented by the defendant reproduces the content of the patent but also encompasses the context in which the right of exclusion is being exercised. In other words, once a patent is designated as essential to a technological standard, judicial analysis tends no longer to treat the injunction claim as if it were dealing with an ordinary patent, entirely divorced from the contractual obligations that characterize the SEP ecosystem. This is not a matter of denying patent protection, nor of conditioning any and all injunctive relief on the prior judicial determination of royalties, but rather of recognizing that the declaration of essentiality and the licensing commitment undertaken by the patent holder become part of the factual and legal framework to be examined by the judge.

It is in this context that the requirement adopted in the most recent approach by the Rio de Janeiro court-that the plaintiff demonstrate, already at the initial stage, at least the general outline of its conduct consistent with FRAND, notably from the perspective of non-discrimination, takes on particular significance.

The idea, it seems, is not to transform the infringement action into a royalty arbitration proceeding, nor to require the judge, from the outset, to set a "correct" price for the license. Rather, what is evident is an attempt to prevent the generic invocation of the FRAND commitment from remaining purely rhetorical, without any practical impact on the allocation of the burden of proof or on the analysis of the likelihood of success on the merits. Hence the emphasis on elements such as the parties' negotiation history, the existence of license offers, the economic rationality of those offers, and, above all, the need to demonstrate that the licensor is not refusing to offer the implementer terms substantially equivalent to those offered to other market participants-and vice versa (hold-up and hold-out practices).

Associated with this is also a clearer concern with reducing the information asymmetry that typically characterizes this type of dispute. If the allegation of a breach of the FRAND commitment-or of discriminatory conduct-depends on access to contracts, business communications, and commercial criteria typically concentrated within the sphere of the patent holder, the examination of this matter presupposes some mechanism for the controlled disclosure of such information.

For this reason, the approach being developed appears to be based on the premise the debate over FRAND-at least when it is actually relevant to the determination of that preliminary relief-cannot be conducted solely on the basis of generic assertions regarding reasonableness or the alleged appropriateness of the sought royalty. Rather, it requires a minimum of documentary support-even if subject to confidentiality-sufficient to allow the court and the expert to understand the reasons actually invoked to justify the license offer made by the patent holder and contested by the implementer.

Another aspect worth highlighting is the way in which this methodology appears to seek to circumvent a recurring difficulty in SEP litigation: the temptation to turn the judicial proceeding into a forum for directly setting a royalty deemed fair and reasonable. The most recent guidance from the Rio de Janeiro court appears to resist this approach, at least at the preliminary injunction stage, preferring to focus the analysis not on defining a figure deemed optimal by the court, but on determining whether the offer made by the patent owner can be sustained within a minimally rational, non-arbitrary, and non-discriminatory negotiating framework. The difference is not trivial. Rather than having the judge assume, at the very outset of the proceedings, the task of arbitrating the economic terms of the license, the focus is on examining whether the licensor's conduct remains within the licensing framework still permitted by the FRAND commitment-which, to some extent, preserves greater deference to private negotiation and reduces the risk that the judiciary will come to replace the market in setting the price of the technology.

Finally, this more recent approach also appears to reflect a more explicit concern for the proportionality of measures supporting injunctive relief. In disputes involving complex products, extensive distribution chains, and technologies integrated into market standards, an order for the immediate cessation of manufacturing, marketing, or importing can have far-reaching economic effects, even beyond the parties directly involved in the lawsuit. Hence the importance, in this new context, of weighing the risk of reverse harm and seeking procedural solutions that reconcile, on the one hand, the protection of patent exclusivity and, on the other, the need to avoid excessively disruptive measures before the technical basis of the dispute is established.

Recent developments in Brazilian legal practice suggest that judicial caution in SEP litigation is not limited to the requirement of technical evidence regarding essentiality and infringement. At the same time, there has been a progressive structuring of the FRAND debate itself, involving controlled document disclosure, examination of comparable contracts, procedural scheduling, and, in certain cases, phased expert analysis so that the court may first assess the reasonableness and non-discriminatory nature of the licensing offer before proceeding to the technical-patent dispute in the strict sense. Rather than a single model, recent case law has revealed a repertoire of techniques for containing and calibrating injunctive relief, aimed at reducing the risk of premature decisions in an environment of high technological and informational complexity

In this vein, perhaps the most significant shift lies not so much in the adoption of a single procedural solution, but in the transition from a culture of presumption to a culture of structured verification. Rather than presuming that a self-declaration of essentiality-linked to the patent grant and private expert opinions-is sufficient to justify measures with significant economic impact, recent precedents tend to require some mechanism for independent validation-whether technical, documentary, or contractual-before more intrusive provisional remedies are adopted.

7. The Brazilian bifurcated system and the need for procedural cooperation

The Brazilian model for resolving patent disputes has a unique characteristic: the separation of jurisdiction between the Federal Courts, which handle invalidity actions, and the State Courts, which have jurisdiction over infringement actions. Although this system is well-established in Brazilian practice, its application to SEP litigation presents specific challenges, especially given the close connection between validity, essentiality, infringement, and licensing.

In traditional patent disputes, the distinction between invalidity actions and infringement actions already poses well-known difficulties related to the possibility that, for a certain period of time, a formally valid patent may coexist with a substantive claim of invalidity still pending before the Federal Courts.

In SEP litigation, however, this tension tends to be amplified. This is because the judicial debate is not limited to the formal existence of the patent or its embodiment in a particular product, but frequently extends to technically interrelated issues, such as the actual essentiality of the patent to the technological standard, the correspondence between the claims and the implementation of the standard, as well as the compatibility of the exercise of the right of exclusion with FRAND commitments.

In practice, this means that the legal analysis conducted in one jurisdiction can significantly influence the utility and proportionality of the measures adopted in the other. An infringement action pending before a state court may proceed on the basis of a preliminary injunction grounded in alleged essentiality and the purported mandatory implementation of the technology, while, in parallel, a nullity action pending before a federal court may call into question the validity of the patent itself that underpins the claim for an injunction.

Although the subjects of the lawsuits are not entirely identical, the strong substantive connection between them would suggest that the legal system should handle this simultaneity with a greater degree of coordination, especially when measures with immediate economic impact are to be granted.

This need for coordination becomes even more evident when one considers the State Courts' growing reliance on technical evidence in reviewing applications for emergency relief in SEP disputes. If preliminary review in infringement actions increasingly depends on expert analysis focused on essentiality, infringement, and the FRAND context, it is natural that the evidence produced at this stage will also become relevant to parallel discussions regarding the validity, scope of the patent, or the technical consistency of certain allegations. Although jurisdiction remains divided, the rationality of the system would suggest avoiding unnecessary duplication of analytical efforts and the risk of mutually disregarded rulings.

The need for procedural cooperation becomes even more evident when one observes that recent Brazilian litigation involving SEPs often unfolds on multiple fronts: infringement actions, negative declaratory actions, preventive claims, conflicts over joinder, motions regarding nullity, and, not infrequently, references to evidence produced in federal proceedings or in parallel cases. Although each of these disputes has its own subject matter, the overlap of technical and business issues suggests that the systemic coherence of the judicial response depends, increasingly, on institutional forms of coordination among courts and on mutual consideration of the broader litigious context.

From this perspective, the debate regarding the Brazilian bifurcated system does not lie solely in the classic tension between validity and infringement, but also in the possibility that different courts may be called upon to assess, from diverse angles, elements that are materially interconnected, such as declared essentiality, the economic scope of the licensing offer, contractual comparability, and the practical utility of provisional measures with a significant impact on competition. In matters of SEPs, therefore, procedural cooperation tends to serve not only to enhance efficiency but also to ensure the epistemic consistency of judicial decisions.

8. Conclusion

Recent Brazilian experience reveals that provisional relief in disputes involving patents essential to technological standards can no longer be treated as an automatic extension of the traditional logic of patent infringement actions. In disputes of this nature, the centrality of the disputed essentiality, the reliance on specialized technical verification, the applicability of FRAND commitments, and the potential for economic disruption caused by hasty injunctions require the judge to adopt a decision-making model that is more thorough, more cautious, and more attuned to the specific nature of this microsystem.

This is not a matter of weakening patent protection, nor of undermining the core of the right of exclusion. What recent practice seems to demonstrate is something more sophisticated: in SEP disputes, the legitimacy of emergency relief depends less on the abstract invocation of the patent title and more on the quality of the factual and legal basis supporting judicial intervention.

The patent continues to occupy a central position-as guaranteed by Article 42 of the Industrial Property Law (LPI)-but its mere existence, combined with a self-declaration of essentiality or unilateral opinions, is no longer sufficient, on its own, to authorize measures capable of removing products from the market, reorganizing distribution chains, or abruptly altering competitive dynamics.

It is precisely on this point that recent case law offers its most significant contribution. What we observe is not the formation of a single, rigid rule, but the development of a more refined judicial framework for addressing the complexity of SEPs.

As we have seen, in some cases the courts have preferred to defer consideration of a preliminary injunction until preliminary technical evidence regarding essentiality and infringement is obtained; in others, they have allowed for the phased production of evidence regarding FRAND terms, with controlled disclosure of comparable contracts and procedural scheduling; in specific cases, it has resorted to alternative solutions, such as a security deposit or bond, to mitigate the risk of reverse damages; and, when the adversarial process is already more robust or the implementer's conduct shows signs of opportunistic resistance, it has also permitted the granting of injunctive relief or evidence-based relief.

This methodological diversity is significant because it shifts the Brazilian debate from a logic of presumption to a logic of verification. In an earlier phase, formal ownership of the right, the declaration of essentiality before the SSO, and opinions produced unilaterally by the rights holder frequently served as a sufficient basis for claims with high economic impact.

The most recent trend, however, indicates a growing reluctance to decide based on a judgment of appearance that is technically unfounded. The likelihood of a right, in SEP matters, now requires a minimally consistent demonstration across three interrelated levels: the technical level of essentiality and infringement; the contractual level of adherence to the FRAND commitment; and the consequential level of the concrete proportionality of the proposed measure.

From this perspective, the greatest merit of recent developments may lie in having restored provisional relief to its proper methodological place: not as an instrument of negotiating pressure divorced from the quality of judicial adjudication, but as a remedy whose intensity must vary according to the degree of uncertainty remaining in the proceedings.

The requirement for technical expert opinions, attention to the history of negotiations, concern for non-discrimination, the search for comparable benchmarks under conditions of confidentiality, and explicit consideration of reverse damages reveal an institutional effort at calibration. Rather than simply reinforcing or restricting patent exclusivity in the abstract, the judiciary is beginning to develop mechanisms to adapt it to the economic, technological, and competitive particularities of standardization.

This is also why the recent Brazilian experience does not lend itself to linear interpretations. It does not establish that injunctive relief is unfeasible in disputes involving SEPs, nor does it legitimize its overuse. What emerges is a model in transition, in which emergency relief remains available but is increasingly conditional upon demonstrating a minimally sound technical basis, a sufficiently clear negotiating context, and procedural conduct consistent with good faith. Within this framework, both the "patent hold-up" and the "hold-out" cease to function merely as rhetorical categories imported from foreign experience and instead operate as concrete scenarios of distortion to be addressed by the Brazilian legal system in light of the case actually brought before the court.

Undoubtedly, some questions remain open. It remains to be seen whether this body of case law will consolidate into a stable legal framework, whether there will be greater judicial precision in assessing FRAND offers, to what extent comparative evidence will be able to coexist effectively with the regime of business confidentiality, and how coordination will develop between state courts, federal courts, and, in certain cases, arbitration proceedings or parallel disputes in other jurisdictions.

The more essential the technology in question is, the more sensitive the scrutiny of its actual essentiality must be; the broader the injunction sought, the more rigorous the analysis of its practical effects must be; and the more the patent holder invokes the FRAND commitment as a basis for its position, the more it must accept that this commitment also shapes the judicial scrutiny of its conduct. It is in this transition from appearance to verification, from abstraction to calibration, and from rhetoric to evidence that lies, at least for now, the true point of maturation in litigation involving patents essential to technological standards in Brazil.

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Footnotes (Notas de Rodapé)

1. Master's degree in Intellectual Property and Innovation from the Graduate Program in Intellectual Property and Innovation at the Academy of the National Institute of Industrial Property (INPI), Brazil. Attorney and partner at the law firm Montaury Pimenta, Machado & Vieira de Mello, specializing in Standard Essential Patent (SEP) litigation. Coordinator of the Essential Patents (SEPs) and FRAND Licensing Committee of the Brazilian Intellectual Property Association (ABPI). ORCID: https://orcid.org/0009-0003-5548-1016. Email: Este endereço de email está sendo protegido de spambots. Você precisa do JavaScript ativado para vê-lo..
2. Holds a postgraduate degree in Intellectual Property Law from the Pontifical Catholic University of Rio de Janeiro (PUCRJ), Brazil. Attorney and partner at the law firm Montaury Pimenta, Machado & Vieira de Mello, specializing in Standard Essential Patent (SEP) litigation. ORCID: https://orcid.org/0009-0002-5161-2093. Email: Este endereço de email está sendo protegido de spambots. Você precisa do JavaScript ativado para vê-lo.
3. Regarding the growing judicial reluctance to rule on injunctive relief requests in SEP disputes based exclusively on unilateral technical opinions, with orders for the early presentation of expert evidence and procedural scheduling, see TJRJ, 6th Business Court, Case No. 3019978-93.2026.8.19.0001, decision of Feb. 27, 2026; TJRJ, 7th Commercial Court, Case No. 3016671-34.2026.8.19.0001, decision of Feb. 12, 2026.
4. Standard Essential Patents. Available at https://www.wipo.int/en/web/patents/topics/sep. Accessed June 11, 2026.
5. BARBOSA, Denis Borges. Patents, Technical Standards, and FRAND License Offers in Brazilian Law. April 2014. p. 02. Available at https://docplayer.com.br/11534264-Patentes-padroes-tecnicos-e-ofertas-de-licenca-frand-em-direito-brasileiro.html. Accessed June 11, 2026.
6. KILMAR, Sofia Galvão. Patents Essential to the Implementation of Standards: Anticompetitive Effects and Solutions Proposed by Patent and Competition Law. University of São Paulo. School of Law. São Paulo, 2017. p. 08. Available at: https://www.teses.usp.br/teses/disponiveis/2/2132/tde-17092020-173554/pt-br.php. Accessed on June 11, 2026.
7. For more information, visit: https://www.etsi.org/
8. For more information, visit: https://www.ieee.org/
9. "6.4 At the request of the European Commission and/or EFTA, initially for a specific STANDARD or TECHNICAL SPECIFICATION or a class of STANDARDS/TECHNICAL SPECIFICATIONS, ETSI shall arrange for an investigation, including an IPR search, to be carried out in a competent and timely manner, with the objective of ascertaining whether IPRs exist or are likely to exist that may be or may become ESSENTIAL to a proposed STANDARD or TECHNICAL SPECIFICATION, as well as the possible terms and conditions of licenses for such IPRs. This shall be subject to the European Commission and/or EFTA covering all reasonable expenses of such an investigation, in accordance with detailed arrangements to be worked out with the European Commission and/or EFTA prior to the investigation being undertaken." Available at https://www.etsi.org/intellectual-property-rights. Accessed on May 10, 2026.
10. STANDARDS BOARD BYLAWS CLAUSE 6 8. IEEE Standards Association. Available at https://standards.ieee.org/about/policies/bylaws/sect6-7/. Accessed June 11, 2026.
11. "Our results have interesting implications for the policy debates over both SEPs and NPEs. Standard-essential patents may not be so essential after all, in part because companies tend to err on the side of over-disclosing patents that may or may not be essential." LEMLEY, Mark A. SIMCOE, Timothy. How Essential Are Standard-Essential Patents? Cornell Law Review. Vol. 104:607. Pp. 608-609. Available at https://scholarship.law.cornell.edu/clr/vol104/iss3/2/. Accessed May 10, 2026.
12. For a precedent that replaces the suspension of commercialization with a deposit/security measure, based on reverse damages, the practical consequences of the decision, and the need to reconcile patent exclusivity with fair access to technology, see TJRJ, AI No. 0042570-64.2021.8.19.0000, 7th Civil Chamber, Reporting Judge Luciano Saboia Rinaldi de Carvalho, rendered Nov. 10, 2021, as reconstructed in the preliminary ruling issued in Acer Inc. v. Nokia Technologies Oy.
13. FARREL, Joseph et al. Standard Setting, Patents, and Hold-up. P. 05. Available at https://faculty.haas.berkeley.edu/shapiro/standards2007.pdf. Accessed on Nov. 5, 2025.
14. KATTAN, Joe. WOOD, Chris. Standard-Essential Patents and the Problem of Hold-Up. December 19, 2013. pp. 4-5. Available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2370113. Accessed May 10, 2026.
15. The focus in Europe shifts from patent hold-up to hold-out. Jan. 2020. Available at https://www.iam-media.com/article/hold-out-in-europe-recent-evidence-and-its-impact. Accessed May 10, 2026.
16. Unwilling SEP Licensees: A Taxonomy of Hold-out Strategies. Documenting hold-out and its negative impact. IP Europe. May 26, 2021. Available at https://ipeurope.org/wp-content/uploads/2021/05/210526-Taxonomy-of-hold-out-strategies-with-annex.final_.pdf. Accessed June 15, 2026.
17. Regarding the requirement to demonstrate, already in the initial phase, conduct consistent with FRAND-including the existence of a license offer, the economic coherence of the proposed conditions, and the equitable/non-discriminatory nature of the licensing-see TJRJ, 6th Business Court of the Capital District, Case No. 0906337-98.2025.8.19.0001, decision of Aug. 13, 2025; Case No. 3014025-85.2025.8.19.0001, decision of Dec. 19, 2025; and TJRJ, 7th Commercial Court of the Capital District, Case No. 3032316-36.2025.8.19.0001, decision of Dec. 19, 2025.
18. Regarding the early submission of expert evidence as a technique for calibrating the scope of relief in patent disputes of high technical complexity, see TJRJ, 1st Commercial Court of the Capital District, Case No. 3012149-61.2026.8.19.0001, decision of Feb. 25, 2026.
19. STJ: In 5G patent dispute, Ericsson wins lawsuit against Apple. Available at https://www.migalhas.com.br/quentes/378495/stj-em-disputa-por-patentes-do-5g-ericsson-vence-acao-contra-apple. Accessed on 02/09/2023
20. See, for example: TJRJ, 6th Business Court of the Capital District, Case No. 0906337-98.2025.8.19.0001, decision of Aug. 13, 2025. TJRJ, 3rd Business Court of the Capital District, Case No. 3016670-49.2026.8.19.0001, decision dated June 1, 2026. TJRJ, 6th Commercial Court of the Capital District, Case No. 3016299-22.2025.8.19.0001, decision of December 11, 2025. TJRJ, 6th Commercial Court of the Capital District, Case No. 3016299-22.2025.8.19.0001, decision of October 16, 2025. TJRJ, 6th Commercial Court of the Capital District, Case No. 3019978-93.2026.8.19.0001, decision of May 19, 2026. TJRJ, 3rd Commercial Court of the Capital District, Case No. 0876807-49.2025.8.19.0001, decision of March 5, 2026.

 

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