At a meeting held on Friday (10/10), members of the Administrative Council for Economic Defense (CADE) presented the Brazilian Intellectual Property Association (ABPI) with the study “Contributions of CADE: Essential Patents”, which addresses the interaction between antitrust law and intellectual property in the context of Standard Essential Patents (SEPs) – patents whose implementation is indispensable for the adoption of certain technological standards.

The meeting featured presentations by Victor Oliveira Fernandes and Tatiana de Macedo, who explained the motivation and scope of the study: to offer a technical and legal overview of the treatment of essential patents in Brazil and abroad, including aspects related to licensing, royalties, and the activities of standard-setting organizations (SSOs).

Although the report does not contain normative recommendations, the document consolidates international references and cases, contributing to the maturation of the competitive analysis of the topic in Brazil. According to CADE representatives, the objective is to provide input to various areas of government and stimulate interinstitutional debate on the regulatory and economic challenges involved.
Among the main points highlighted at the meeting are:

• FRAND negotiations and contractual good faith: essential patents must be licensed on fair, reasonable, and non-discriminatory (FRAND) terms, but the concept and practical application of these conditions vary widely between jurisdictions. CADE pointed out that there is no global uniformity on what constitutes a FRAND proposal, and that the absence of objective criteria makes it difficult to define good faith behavior in negotiations.Some parameters that have been adopted or debated internationally were mentioned, such as the need to submit a formal, written licensing offer, with a defined method for calculating royalties, a reasonable deadline for response and counteroffer, and non-discriminatory treatment in relation to licenses already granted to third parties.

• Caution in preliminary injunctions: CADE expressed concern about court decisions ordering the suspension of products or cessation of sales, emphasizing that preliminary injunctions should be reserved for more serious cases in order to avoid irreversible effects on competition and the functioning of the market. It also acknowledged that the Brazilian judiciary has adopted a more discerning stance in assessing and granting preliminary injunctions, reflecting greater institutional maturity regarding the competitive impact of such decisions.

• Global licensing and regulatory convergence: the challenges of international coordination in license negotiations involving multiple jurisdictions were discussed, especially in view of the differences in approach between authorities, highlighting the importance of seeking a better balance between the interests of patent holders and implementers.

• Confidentiality and transparency: CADE emphasized the importance of protecting sensitive business information without compromising the transparency of judicial proceedings. It was noted that approximately 85% of patent-related cases in Brazil remain public, with confidentiality normally restricted to confidential commercial documents. The authority emphasized that the judiciary still faces technical challenges in modulating different levels of access to information, which reinforces the importance of improving legal certainty and predictability in this type of litigation.

• Institutional cooperation: although the study does not propose immediate joint actions, CADE representatives pointed out that closer ties with the INPI could be an important step toward developing guidelines on essential patent rights and good competition practices policies.

It was emphasized that CADE’s experience in this area is still recent but has been expanding based on specific cases and dialogue with the judiciary, the private sector, and professional associations. The expectation is that, in the future, the antitrust authority will be able to contribute with a procedural framework capable of guiding the actions of courts and parties in disputes involving SEPs.

The study marks a significant advance in the dialogue between competition and innovation in Brazil, reinforcing CADE’s role in promoting legal certainty and regulatory predictability in matters involving the balance between intellectual property protection and free access to standardized technologies.