3.3.1 Judicial administration structure, decision-makers and procedures
To clarify the functioning of the Brazilian justice system in conflicts involving patents, it is necessary to briefly present the Brazilian judicial procedure, the organization of the judiciary and, finally, the powers attributed to judges and the limits of their performance. With this information, it will be possible to understand the management limits of proceedings involving patent litigation under Brazilian law.
The Brazilian civil procedure is divided into what is known as the “cognizance” phase – in which disputes and controversial issues between the disputing parties are decided by the judge – followed by the “judgment satisfaction” phase – in which sanctions are imposed by the judges if their decisions are not voluntarily satisfied. The cognizance phase ends, as a rule, with the rendering of a final order by the judge, either ending the case without prejudice or deciding on the relief requested by the parties, known as “judgment.”
It is interesting to note that, although Brazil has its own patent law (i.e., the LPI), procedural matters are basically governed by the general civil procedural law (i.e., the CPC). In other words, based on the general procedural rules, judicial practice has adapted the civil procedure to the peculiarities of the issues related to the judicialization of patents in Brazil. The CPC is applied nationally, binding both the federal and state courts.
There are two main rules that guide the assignment of jurisdiction in cases involving patent litigation. Cases that claim patent nullity are heard by the federal courts, with mandatory intervention by the INPI (Article 57 of the LPI and Article 109 of the Constitution). Being a matter of absolute rationae personae jurisdiction, cases involving discussions regarding patent infringement are heard by state courts. Cases related to patent infringements can be filed before any of the trial courts that make up the state courts, which are organized and have their competence distributed according to Article 92 of the Constitution. Any trial court can accept such cases as long as the criteria for the definition of jurisdiction are observed.
With respect to the organization of courts and the judicial districts that make up each of the state courts, the Constitution exclusively grants, to each state’s courts, the authority to propose to the legislative power of the federative entity to which it belongs the creation, organization and distribution of jurisdiction. Therefore, each state court may organize itself differently, including with regard to matters involving patents. The same applies to each of the five regional federal courts with regard to its organization.
What defines the number of courts and their degree of specialization in a certain city or judicial district is the judicial workload. Consequently, jurisdiction is regulated by the resolutions of the state and regional federal courts.
Regardless of whether it is at a federal or state court, all patent litigation goes through first instance jurisdiction – in which the issues are analyzed by a single judge – and through appellate instance jurisdiction (state or regional federal appeal courts) – in which appeals are addressed and tried by a panel of judges. In exceptional circumstances, it is also possible to submit a court of appeal’s decisions for review by the Superior Court of Justice (Superior Tribunal de Justiça; STJ), which analyzes, in summary, allegations of infringement of the federal law, or even by the STF, which is responsible for constitutional issues.