Court actions related to patent infringement are extremely complex, and often require technical knowledge with which Brazilian judges are unfamiliar. Therefore, it is rare to obtain a preliminary injunction in a patent case. The courts prefer not to grant preliminary injunctions due to a lack of knowledge in the area.

The former Civil Procedural Code (which was in force until March 17 2015) provided for an injunction regarding the anticipated production of evidence, including expert witnesses. However, in order for the court to grant such action, the plaintiff had to demonstrate the urgency of the situation or the risk that without the injunction, it would be unable to produce the evidence during the main action. As a result, there are few examples of this type of injunction in patent disputes.

The new Civil Procedural Code, which came into force on March 17 2015, radically changed the situation. The new code provides that anticipated evidence must be considered, regardless of the urgency. The new code requires only that the anticipated act be capable of helping the parties reach an agreement or avoiding a new court action. 

Therefore, assuming that the anticipated evidence to be produced confirms the patent infringement, the defendant will have a major interest in ceasing the infringement or reaching a deal with the plaintiff to avoid a court case. However, if the defendant does not cease the infringement after it has been confirmed, the plaintiff will have a strong case for a preliminary injunction for the immediate cessation of the infringment.

Fábio Leme

This article first appeared in IAM. For further information please visit www.iam-media.com.