In a recent decision, the Superior Court of Justice determined that a patent infringement action can only be filed after the enforced patent has been granted by the Brazilian Patent and Trademark Office, as it is established by article 44 of the Industrial Property Law.

According to Justice Nancy Andrighi’s opinion, “there is no way of ensuring that, at the end of the administrative procedure initiated in the Brazilian Patent and Trademark Office, the patent application will in fact be granted; nor is it possible to establish, prior to the granting of the right, the limits of protection that will eventually be conferred by the Office”.

She added that only a granted patent awards the owner the right to prevent third parties, without his consent, from producing, using, offering for sale, selling, or importing the patented product or the process or product obtained directly by a patented process, as well as the right to obtain compensation in the event of undue exploitation.