Brazil and Germany: similarities and differences in the judicial system of patents

There are many differences, but there are some similarities in the rules on patents of the courts in Brazil and Germany, as demonstrated at the international event promoted, on May 25, at the ABPI – Associação Brasileira da Produção Intellectual office, in São Paulo. At the meeting, the former president of the Chamber of Nullity Appeals of the Federal Patent Court of Germany, Karin Friehe, and the member of the ABPI Board of Directors, Jacques Labrunie, compared the processes of the two countries in actions of nullity and infringement of patents .

The presentations showed, for example, a certain similarity in the powers of the courts that decide on cases of patent nullity and actions related to patent infringement. “The Federal Patent Court judges the validity of a patent, while state civil courts are competent to judge an infringement,” explained Karin Frihe. “But there is a door where everything fits, the Federal Supreme Court, which is responsible for cases of infringement and validity. There, everything comes together again.”

In Brazil, as Labrunie showed, it is not very different. “Here we have federal courts for patent nullity and state courts for patent infringement. And in the end, like in Germany, we have the Superior Court of Justice and the Federal Supreme Court for legal and constitutional issues”, he explained. “But the Federal Supreme Court is more restricted to discuss industrial property, since it judges only constitutional matters”. There is still, in Brazil, controversy over the nullity of patents, as a matter of defense, in the State Courts.

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

In Brazil, noted Labrunie, specialized courts and groups were created for cases of nullity, in the Federal Court of Rio de Janeiro. There are four courts specializing in industrial property and other matters and two classes in the Federal Court. For cases of patent infringement, there is specialization in 1st instance in RJ, RGS and SP and in the Court of Justice of SP.
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