How specialisation transformed Brazil’s patent system

Dedicated IP courts and a heightened focus on patent law have transformed the handling of disputes in the country, say Abel Gomes and Liliane Roriz of Licks Attorneys

Brazil, now among the world’s top ten largest economies, owes part of its success to its utility patent system. This system plays a pivotal role in fostering investment in high-value sectors such as advanced technologies and innovative services, which rely heavily on strong legal protections for IP.

The roots of Brazil’s current patent system can be traced back to 1994 when the country adopted the Stockholm Revision of the Paris Convention and the World Trade Organization TRIPS Agreement.

This integration into the international IP framework set the stage for the development of Brazil’s patent system. The primary legal foundation is Federal Statute #9,279 of 1996, which establishes the rights and obligations related to industrial property, including utility patents.

While having a robust statute is essential, the effectiveness of the patent system depends significantly on its enforcement. This is where Brazil’s judiciary has played a crucial role.

Since 1989, the Brazilian judiciary has been enhancing its specialisation in patent law, a move that has greatly improved the system’s effectiveness. The judicial system’s efforts have provided legal certainty for both local and international investors, facilitating access to cutting-edge products and services for the Brazilian population. This specialisation is pivotal in maintaining Brazil’s reputation as a reliable jurisdiction for patent adjudication.

President Fernando Henrique Cardoso, during the signing of Federal Statute #9,279 in 1996, emphasised the transformative impact of patent legislation. He stated, “Let’s share knowledge and transform the country, as we are doing, so it may truly become the master of its destiny.” Nearly three decades later, the Brazilian patent system continues to support research, development, and industrial growth, significantly contributing to the nation’s economic and social advancement.

Two court system

Unlike countries such as the US or Germany, Brazil does not have a single specialised court exclusively for utility patent disputes. Instead, the Brazilian Constitution (Article 92) establishes a system of two independent, non-hierarchical courts. Both state and federal courts have jurisdiction over different patent disputes. This structure helps minimise public expenditure on specialised courts and reduces processing times while ensuring that Brazil remains a predictable and reasonable jurisdiction for patent matters.

Chief Justice Luís Roberto Barroso, in his 2023 inauguration speech, highlighted the productivity of Brazilian courts, noting that they handle approximately 30 million cases annually. According to the National Council of Justice (CNJ), Brazilian courts had 81.4 million ongoing cases in 2023, with almost 80% of these cases in state courts. This high volume of cases demonstrates the judiciary’s capacity to manage a broad array of legal matters, including patent disputes.

The Brazilian judicial system’s approach to patent cases has been influenced by historical and constitutional developments. The “mixed bifurcated” system is employed, wherein state courts handle infringement and damages claims, while federal courts address patent validity and cases involving federal agencies. This approach ensures that all aspects of patent disputes are addressed effectively.

Enhanced handling of patent cases

Specialisation within the judiciary has been a key factor in the effectiveness of Brazil’s patent system. This began with the Rio de Janeiro Federal Court, which started dedicating some of its district courts to industrial property cases in 2000. This was formalised with Provision #15, which mandated the allocation of industrial property-related cases to specific district courts. The Federal Court of Appeals for the 2nd Circuit (TRF-2) also introduced specialised panels for IP cases in 2004, further enhancing the judicial handling of patent disputes.

The Brazilian Patent and Trademark Office (BRPTO), established in 1970, plays a central role in overseeing industrial property regulations. Its historical context, along with its predecessor, the Brazilian Patent and Trademark Department (BRPTD), explains why the Rio de Janeiro Federal Court became a pioneer in patent specialisation, back in September 2000. This court has become a leading institution in adjudicating patent disputes, managing a significant volume of such cases compared to other courts.

In 2022, the Federal Civil Courts of the Judiciary Section of the Federal District began specialising in patent cases. This new specialisation, still in its experimental phase (with a planned reevaluation in 2024), reflects the unique role of the Federal District as a national forum for federal agencies and the BRPTO.

State courts have also adopted specialisation in patent cases. The Rio de Janeiro State Court established its IP specialisation with Rule #19 in 2001. This court handles a significant number of patent infringement cases and is notable for its long-standing specialisation. Other State courts have followed suit. For example, São Paulo created regional business trial courts with exclusive jurisdiction over IP disputes. This separation addresses the high volume of cases and improves adjudication efficiency.

The São Paulo Court of Appeals has also established a Corporate Law Appellate Panel to handle IP appeals disputes. This panel is integrated into the Private Law Section, which was previously focused on civil matters. The creation of this panel underscores the importance of specialised adjudication in handling complex IP cases.

Minas Gerais and Rio Grande do Sul have also developed specialised business courts to manage IP disputes. The Minas Gerais State Court, for instance, designated its business trial courts in Belo Horizonte for IP trials. Similarly, Rio Grande do Sul’s regional business trial courts in Porto Alegre and other districts handle patent cases, reflecting a broader trend toward specialisation in the state courts.

Effectiveness and challenges

The specialisation of courts in Brazil has led to significant improvements in the handling of patent cases. Specialised courts have demonstrated increased efficiency, predictability, and expertise in adjudicating complex patent disputes. This has been instrumental in maintaining the effectiveness of Brazil’s utility patent system.

However, the system is not without its challenges. Critics sometimes argue that Brazilian judges lack specialisation or fail to thoroughly examine cases. Such criticisms, often based on misconceptions, seek to undermine the credibility of the judiciary. It is important to recognise that the judiciary’s commitment to fair and timely adjudication is a cornerstone of Brazil’s patent system.

Recent decisions by the Brazilian Superior Court of Justice (STJ) and the Supreme Federal Court (STF) have reinforced the system’s effectiveness. These decisions reflect a consistent commitment to upholding justice and ensuring legal certainty in patent matters. Despite occasional criticisms, the judicial system has continued to demonstrate its capacity to handle patent disputes effectively.

In conclusion, Brazil’s utility patent system, supported by a judiciary that balances specialisation with efficiency, has played a crucial role in the country’s economic growth and technological advancement.

The judicial system’s commitment to fair and effective adjudication continues to strengthen the patent framework, contributing to Brazil’s status as a leading economy with a robust IP system. The evolution of judicial specialisation in patent cases highlights the effectiveness and adaptability of Brazil’s approach to IP law.

Abel Gomes is a retired federal appellate judge and partner at Licks Attorneys. He can be contacted at abel.gomes@lickslegal.com

Liliane Roriz is a retired federal appellate judge and partner at Licks Attorneys. She can be contacted at liliane.roriz@lickslegal.com