Newsletter Edition 47 - May 2023


Brazil and Germany: Similarities and Differences in the Patent Judiciary System

At the international event held on May 25th at the office of ABPI (Brazilian Association of Intellectual Property) in São Paulo, it was demonstrated that there are significant differences but also some similarities in the patent rules of the courts in Brazil and Germany. During the meeting, Karin Friehe, the former president of the Board of Nullity Appeals of the German Federal Patent Court, and Jacques Labrunie, a member of the ABPI Council, compared the processes of both countries in patent nullity and infringement actions.

The presentations showed, for example, a certain similarity in the jurisdiction of the courts that decide on patent nullity cases and patent infringement actions. “The Federal Patent Court decides on the validity of a patent, while the state civil courts have jurisdiction over infringement cases,” explained Karin Friehe. “But there is a doorway where everything comes together, the Federal Supreme Court, which is responsible for infringement and validity cases. There, everything converges again.”

In Brazil, as demonstrated by Labrunie, it is not much different. “Here we have federal courts for patent nullity and state courts for patent infringement. And in the end, as in Germany, we have the Superior Court of Justice and the Federal Supreme Court for legal and constitutional matters,” he explained. “But the Federal Supreme Court’s discussion of industrial property is more limited, as it only judges constitutional matters.” In Brazil, there is still controversy over the nullity of patents as a defense argument in state courts.

If there are similarities, the training of judges marks the differences between the two countries. In Germany, the Federal Patent Court is composed of judges with legal and technical backgrounds. According to Karin, some of the appointed judges are engineers, scientists, or former examiners from the German Patent Office.

In Brazil, as noted by Labrunie, specialized courts and panels were established within the Federal Court of Rio de Janeiro to handle nullity cases. There are four specialized courts that handle matters related to industrial property and other topics, along with two panels within the Federal Court. Concerning patent infringement cases, specialization exists in the first instance in the states of Rio de Janeiro, Rio Grande do Sul, and São Paulo, as well as within the São Paulo Court of Justice.

A video is accessible on our website’s event page in the exclusive access area for members who could not attend the live session.

Please log in with your credentials to watch it.