It is well known that court actions related to patent violations are extremely complex or require technical knowledge that Brazilian judges are not familiar with.
For this reason, it is extremely rare to obtain preliminary injunctions in this kind of case to halt the violation. Brazilian judges often prefer not to grant preliminarily injunctions due to the lack of knowledge of n the matter.
The current Civil Procedural Code (valid until March 17, 2015) has a specific caution action focused on the anticipated production of evidence, including the expertise.
However, in order to convince the Brazilian judges to grant these anticipated productions of evidence, the Plaintiff must demonstrate the urgency of the situation or the risk of being unable to provide this evidence in future during the main court case on the violation.
As a result, it cannot be denied that the number of examples of anticipated production of evidence (expertise) in patent conflicts are low.
The new Brazilian Civil Procedural Code in force from March 17, 2015 radically changes this situation. The new Code allows the previous expertise to be considered, regardless of the urgency.
In order to realize the anticipated production of the expertise, the new Code only requires this anticipated act to be capable of leading the parties to an agreement and/or avoid a new court action.
Therefore, assuming that the anticipated production of the expertise confirms the patent violation, the Defendant will have great interest in halting the violation or promoting some kind of deal with the Plaintiff to avoid another court case.
On the other hand, if the defendant does not halt the violation after the confirmation of the violation, the Plaintiff will have strong evidence to obtain a preliminary injunction in a future court action to halt the violation immediately.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.