2023-09-15 20:50:24
The role of the Judiciary in guaranteeing respect for patent rights and combating abuse of rights is seen by experts as decisive for the country’s technological development. The recognition of the importance of Justice to create security and stimulate industry investment in innovation brought together authorities and legal professionals at the event “Relevant Topics in Patent Law”, recently promoted by EMERJ (Escola de Magistratura do Estado do Rio de Janeiro).
Innovation, legal security and patent law were the topics of debate during the event on September 5th. According to the experts present, the evolution of communications with the arrival of 5G was only possible thanks to the protection of 4G patents. Likewise, the development of 6G technology has as its starting point the royalties paid to inventions already implemented, often guaranteed through injunctions granted in court. Also highlighted at the event was the issue of essential patents and the importance of the Judiciary in this scenario.
The general director of EMERJ, Judge Marco Aurélio Bezerra de Melo, set the tone at the opening of the event, saying that patent protection is essential to guarantee investments in innovation. “It has a very important social function, not only to promote the technological development of the country and create income, jobs, and the aggrandizement of our country, but also to combat the abuse of rights, which is very explicit, and which must be faced by all of us, which is unfair competition”, he stated
The executive president of the Brazilian Association of the Electrical and Electronic Industry (Abinee), Humberto Barbato, also pointed out the intrinsic relationship between patents and national production. There is only investment “because the industry trusts that the Judiciary will guarantee property rights to the extent of the protection conferred by the patent, promptly stopping violations”. The Judiciary, says Barbato, knows the importance it has when it comes to granting injunctions to local and foreign industry installed in Brazil: “It is the injunctions that allow the prompt combat against those who violate patents and the maintenance of the balance of contracts of license signed with honest manufacturers, guaranteeing national production, jobs, and options for Brazilian consumers”.
The president of ABPI, Gabriel Leonardos, addressed the issue of essential patents: “The patent holder makes a self-declaration saying: ‘this patent of mine is essential and, therefore, I commit to granting FRAND licenses’. But this self-declaration is a bit like writing a check to yourself, because you now have the right to receive royalties.” And he continued: “So of course, if there is a reasoned objection in the process that that patent would not be that essential, that has to be examined.” The counterpoint was corroborated by lawyer Marcelo Mazzola: “It’s a blank check, he’s giving himself a check, he declared himself”.
For the Vice-President of the EMERJ Advisory Council, Judge Cláudio Luís Braga dell’Orto, the protection of inventions aims to “protect and encourage” investment in research, boosting development. “The industry must be guaranteed that there is competition that observes the rules. I cannot be an entrepreneur who manufactures a product without paying for the technology that I will use, without paying for all the patents that I will involve. This would be harmful to the entire competition system,” he said. “This remuneration is what will allow for future investment and development. It was said here, we only have 5G because there was 4G and there was the payment of royalties related to 4G, which produced and encouraged research”.
Retired Federal Judge Liliane Roriz, President of the 5G, Technical Standards and Technological Innovation Commission of OAB-RJ, presented data on the legal security of the Brazilian patent system over the last 10 years. The INPI granted 143,300 patents in the period, annulling only 230. The Federal Court received 434 patent nullity actions, annulling 50, just 0.034% of the patents granted.
Federal Judge Caroline Tauk addressed the procedural aspects of patent law and analyzed cases that demonstrate its relevance. One of them was Ericsson’s 5G patent decision, which led to a global licensing agreement. “We had these actions all over the world, but Brazil was a pioneer in this trial. It was an important case because, following this agreement, several other countries ended their processes.”
Abel Gomes, retired Federal Judge and member of the EMERJ Permanent Forum on Criminal Law and Criminal Procedure, debated the jurisdiction for patent trials. According to him, the judge must observe a circumstantial standard of evidentiary elements that guide the decision on advance relief, consisting of the fact that the allegation of nullity as a matter of defense is brought as a response to the infringement action; there must have been a previous contract between the infringer and the patent holder; and the very fact that INPI granted the patent. Furthermore, he added that the fact that a nullity action was not filed before the illicit use of the patent already demonstrates the bad faith of those who, if they believe that the patent is null, arbitrarily violate it.
Rodolfo Barreto, Coordinator of the 5G, Technical Standards and Technological Innovation Commission at OAB-RJ, highlighted that there is “mysticism surrounding the concept of essential patents”. According to him, questions raised against the protection of these patents can be misrepresented. For example, self-declaration, which is not used as proof of violation and exists only to provide transparency to third parties who decide to adopt the standard. According to him, holders of essential patents are forced to seek the Judiciary when the infringers do not continue negotiations, which usually take years, but do not use self-declarations as proof of infringement, but rather present an extensive evidentiary framework, which goes beyond technical opinions, indicating the degree of probability of patent infringement to be considered when granting an injunction. The Fluminense Judiciary, in Barreto’s assessment, has demonstrated expertise and fearlessness, weighing evidence and facts case by case, without presumptions or prejudices.
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