3.12 Key challenges and efforts to improve patent case management
By way of this project, after hearing from not only judges but also other legal practitioners, we identified the main challenges to be faced in adjudicating patent disputes in Brazil:
- The lack of specialization of some courts was a challenge for the adequate processing of actions involving patents, due to the specificity of the technical and legal matters in this kind of action. Some regions have already adopted some specialized courts, and, in the higher courts, some have specialized chambers as well.
- There is difficulty in producing expert evidence because this requires a professional with specialized technical knowledge.
- The uncertain relation between patent nullity actions, which are processed before the federal courts, and actions for infringement in which patent nullity is incidentally alleged.
The CPC provides, in Articles 67–69, rules that govern collaboration between judges. It is, however, a recent rule that needs to be incorporated into the Brazilian judicial culture. The articles provide that:
Article 67. The bodies of the Judiciary, state or federal, specialized or common, in all levels and degrees of jurisdiction, including the higher courts, have the duty of reciprocal cooperation, through their judges and servants.
Article 68. The courts may make a request for cooperation to each other for the performance of any procedural act.
Article 69. The request for judicial cooperation must be promptly met, does not require a specific manner, and can be executed as:
I – direct assistance;
II – joining or attachment of cases;
III – provision of information;
IV – acts between the judges in cooperation.
Paragraph 1. The letters of order, of request and of arbitration shall follow the regime provided for in this Code.
Paragraph 2. The acts agreed between the judges in cooperation may consist, in addition to others, of the establishment of a procedure for:
I – the service of process, summons or notification of an act;
II – the obtaining and presentation of evidence and the hearing of testimonies;
III – the granting of a provisional injunction;
IV – the implementation of measures for the recovery and preservation of companies;
V – the facilitation of proof of claim in bankruptcy and court-supervised reorganization;
VI – the centralization of repeated cases;
VII – the execution of a court decision.
Paragraph 3. The request for judicial cooperation may be made among judicial bodies from different branches of the Judiciary. (Articles 67–69 of the CPC)
Recently, Resolution No. 350, of October 27, 2020, of the National Justice Council (Conselho Nacional de Justiça) was issued to regulate the guidelines and procedures on national judicial cooperation among bodies of the judiciary.