Private Ordering in Global SEP Licensing: Comparative Lessons for Brazil’s Emerging Role in FRAND Disputes
Abstract
Brazil is becoming an increasingly visible forum for standard-essential patent (SEP) disputes. Recent litigation before the Rio de Janeiro Business Courts and defensive declaratory actions in São Paulo suggest that Brazilian courts may play a more significant role in global fair, reasonable, and non-discriminatory (FRAND) licensing strategy. This article argues that Brazil should preserve credible patent enforcement without allowing SEP litigation to substitute for commercial licensing. The comparative experience of the United States, the European Union, the United Kingdom, and China shows that national approaches to remedies, competition claims, and global rate-setting can shape bargaining leverage and encourage forum shopping. The central claim is that SEP licensing remains a system of private ordering, supported by standard-setting organisations, FRAND commitments, patent pools, portfolio licensing, and negotiated commercial agreements. Brazilian courts should therefore act as backstops that make negotiation credible, discipline strategic delay, and prevent disproportionate injunction pressure. Where disputes concern global portfolio valuation, confidential comparables, or complex licensing terms, mediation, expert determination, and arbitration may offer a more suitable path. Brazil’s opportunity is not to become either a patent-holder-friendly injunction forum or an implementer-friendly defensive forum, but a jurisdiction where enforcement, proportionality, and private ordering reinforce one another.