Brazil’s Approach
SEPs and their licensing under FRAND terms have become critical issues in Brazil, a major smartphone market with over 160 million internet users, ranking as the fifth-largest globally. Brazil’s pro-patentee judicial environment has made it a hotspot for SEP enforcement, particularly in telecommunications, where SEPs underpin 2G––5G standards. Brazilian courts, especially in Rio de Janeiro, have historically favored SEP holders by granting preliminary and permanent injunctions against implementers, treating SEP disputes similarly to non-SEP patent cases under the Brazilian Industrial Property Law (Article 42).
Brazilian courts have consistently upheld SEP holders’ rights to seek injunctions, viewing FRAND commitments as contractual obligations that do not inherently limit patent enforcement. In TCT v. Ericsson case (2012), the first SEP infringement lawsuit in Brazil, trial and appellate courts granted injunctive relief to Ericsson, enjoining TCT from importing, manufacturing, or selling handsets infringing Ericsson’s SEPs. CADE rejected TCT’s antitrust claims, ruling that SEP enforcement is a private matter, not an infringement of economic order, as it lacks broader anti-competitive effects. Similarly, in Ericsson v. Lenovo (2023), the Third Business Court of Rio de Janeiro granted a preliminary injunction against Lenovo/Motorola for infringing Ericsson’s 5G SEPs, upheld on appeal, reinforcing Brazil’s pro-patentee stance. In the said decision, the presiding judge, emphasized that Brazilian law does not distinguish between essential and non-essential patents, and the Brazilian Patent and Trademark Office (BPTO) lacks a mechanism to note patent essentiality. This approach reflects the burden on implementers to prove a SEP holder’s breach of FRAND terms, treating foreign law and decisions as persuasive but non-binding.
Recent judicial decisions, however, indicate a more nuanced approach, requiring SEP holders to demonstrate FRAND compliance before obtaining injunctions. In DivX v. Hisense (2024), a Brazilian court initially granted a preliminary injunction for infringement of a video patent essential to the HEVC standard but later revoked it, ruling that SEP holders must prove they offered a FRAND-compliant license. The court highlighted non-discrimination as a critical FRAND factor, placing the burden on the SEP holder to show comparable licensing terms, as implementers lack access to such agreements. This decision, though not binding, marked a milestone as the first Brazilian ruling explicitly requiring FRAND compliance for injunctive relief. In 2024, this approach was refined by mandating an independent court-appointed expert opinion for preliminary injunctions in SEP cases, addressing concerns about ex parte grants without sufficient evidence. These rulings suggest Brazilian courts are striving for transparency and fairness, balancing patentee rights with implementers’ access to standardized technologies.
CADE’s evolving role introduces competition law scrutiny into SEP disputes, challenging the view that such cases are purely private. Very recently in Ericsson v. Lenovo (May 2025), CADE initiated an investigation following Lenovo/Motorola’s November 2022 complaint, alleging Ericsson abused its dominant position by seeking injunctions to force excessive 5G royalty payments, violating FRAND terms. Lenovo cited a November 2023 injunction as coercive, prompting CADE to request details on Ericsson’s April 2025 global cross-licensing agreement with Lenovo, including pricing, licensing terms, and non-discrimination criteria. Ericsson defended its FRAND compliance, arguing Lenovo employed a holdout strategy by using SEPs without a license for over a decade. While CADE’s investigation remains open, it diverges from its TCT v. Ericsson (2012) precedent, indicating increased willingness to examine FRAND’s competitive impacts. CADE’s rapporteur, Gustavo Augusto, emphasized safeguarding market competition over protecting individual firms, suggesting a potential shift toward stricter antitrust oversight.
Brazil’s SEP / FRAND landscape is thus at a crossroads, with courts maintaining a pro-patentee bias but adopting stricter FRAND compliance standards, while CADE’s investigations signal growing regulatory intervention. The cases cited highlight the need for documented licensing negotiations and transparent FRAND terms, as implementers leverage competition law to counter injunctions. Unlike jurisdictions like China (Huawei v. InterDigital, 2013) or India (Nokia v. Oppo, 2024), where courts set global FRAND rates or require pro tem deposits, Brazilian courts focus on domestic enforcement, treating foreign case law as persuasive. As Brazil’s judiciary and CADE refine their approaches, the country’s role in global SEP litigation will likely grow, balancing innovation incentives with market access for implementers. Future CADE decisions, particularly in Ericsson v. Lenovo, could set precedents for integrating antitrust principles into SEP disputes, potentially aligning Brazil with global trends.