Webinar on SEP Licensing and FRAND Commitments in Brazil
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The International Center for Law and Economics and Fundação Getulio Vargas (FGV) Rio de Janeiro hosted an Aug. 25 webinar on the licensing of standard-essential patents (SEPs) and fair, reasonable, and non-discriminatory (FRAND) commitments in Brazil. The discussion featured Administrative Council for Economic Defense (CADE) Deputy Chief Economist Tatiana de Macedo Nogueira Lima; Gabriel Tajra, a lawyer with Del Chiara Pereira Advogados and researcher at FGV in Rio de Janeiro; Bernardo Cascão, partner at BMA Advogados; and Juliana Oliveira Domingues, professor of economic and antitrust law at the University of São Paulo and former CADE attorney general.
The panel examined Brazil’s growing role in global disputes over SEPs. Because standards like 4G and 5G are international, and both patent holders and implementers operate across jurisdictions, fragmented national approaches serve to increase transaction costs and uncertainty. This also explains why SEP licensing is usually conducted through private contracts and negotiated settlements rather than state regulation.
The Reports Framing the Debate
The discussion centered on two recent reports:
The July 2025 report “Contribuições do CADE: Patentes Essenciais” was produced by CADE’s Department of Economic Studies. It does not propose new regulations but seeks to clarify fundamental concepts and serve as a technical reference for policymakers and stakeholders. The report noted that private-party negotiations are the norm in Brazil, driven by such factors as the high transaction costs of prolonged, multijurisdictional litigation, and the strong incentives to reach licensing agreements, rather than pursue dilatory tactics or market exclusion.
The second report, “SEP Litigation: A View from Brazil,” was prepared by the Núcleo de Estudos em E-commerce at FGV Direito Rio and authored by Nicolo Zingales, Arthur Sadami, Gabriel Tajra, Valeria Silva, and Rubens Cantanhede. The report provides a comparative analysis of SEP disputes, emphasizing Brazil’s relevance for infringement cases, even when the FRAND determinations tend to be made abroad. It finds that:
“The majority of SEP-related disputes in Brazil have been resolved through pre-trial settlements, with the parties entering into global patent licensing agreements before any decision on the merits at the trial level. Specifically, out of the 18 cases reviewed, 15 ended in settlement.”
Key Insights From the Panel:
CADE’s Report: Clarification not Regulation. Tatiana de Macedo Nogueira Lima highlighted that, while Brazil has had very few cases concerning essential patents, the issue retains significant interest both for patent owners, who must be incentivized to invest in research and development, and users, who need access to standardized technology. This dual interest led CADE to prepare a technical report on the subject. The purpose of the report, however, was not to impose regulation, but to clarify key concepts.
Brazil’s Role in the Global System of Essential Patents. Gabriel Tajra also emphasized SEPs’ global character. He noted that Brazil has established itself as a relevant jurisdiction, primarily for resolving disputes about patent infringement, while the determination of FRAND terms is left to other countries such as the United States, the United Kingdom, and China. This position generates strong incentives for parties in Brazil to reach negotiated settlements, rather than relying on court orders. According to Gabriel, this demonstrates that the Brazilian system places importance on negotiation and the protection of individual rights. He also stressed that the research underlying his report demonstrates that the ideal solution is for a patent holder and implementer to agree on terms, as they are better equipped to determine what is fair and reasonable than the courts.
“The literature indicates that the ideal is for the essential patent holder and the implementer to make an agreement themselves, because they are better positioned to reach a more reasonable royalty term, also in other non-monetary terms besides royalties.” — Gabriel Tajra
Negotiation Between Private Parties as the Preferred Route. Echoing points made by other discussants, Juliana Oliveira Domingues explained that leaving decisions entirely to the judiciary is problematic, as the Brazilian courts are overburdened and lack specialization in intellectual property and economic analysis. For this reason, she argued that alternative dispute resolution should be encouraged, placing the emphasis on private-party negotiation. She added that the judiciary cannot assume a legislative role and that CADE should serve primarily as a technical body to provide expertise in support of judicial decisions.
“Injunctions help, but we do not have quick conclusions on the merits. Therefore, alternative dispute resolution methods need to be encouraged. The Judiciary should only be called upon when there is no other way to resolve it.”
The Role of Brazilian Courts in Supporting Good Faith Negotiations on Essential Patents. Bernardo Cascão pointed out that CADE can intervene as amicus curiae in judicial proceedings. He added that it would be desirable for the Brazilian judiciary to consider the circumstances of negotiations before granting restrictive measures. In doing so, courts can avoid upsetting the balance of negotiations, especially since these disputes are global in nature and their effects extend beyond Brazil. If Brazil’s system prevented good-faith negotiation between private parties, it would harm the country’s position in the global market.
