Thursday, July 23, 2015

Brazilian FRAND Ruling

Ed Taylor published a short article in the July 20 issue of Bloomberg BNA's World Intellectual Property Report titled Ericsson Wins Brazil Standard Essential Patent Dispute (available here, behind a paywall).  According to the article, on July 7 the Brazilian competition authority Conselho Administrativo de Defesa Economica (CADE) concluded that Ericsson did not violate Brazilian competition law by requesting injunctive relief in a dispute over 3G patents with TCT, which markets Alcatel products in Brazil.   Mr. Taylor was kind enough to provide me with a copy of the decision (which is dated June 8; I understand the July 7 decision rejected an appeal from the June 8 decision), available here (in Portuguese).

I don't read Portuguese, but assisted by Mr. Taylor's article and Google translate (which I used to generate a rough translation of the decision, and also of two other write-ups I found, one by Laura Ignacio and one by Cesar Peres Advocacia Empresarial), it appears that the patents in suit are subject to a FRAND commitment made to ETSI.  The Brazilian competition authority is of the view, however, that Ericsson did not violate Brazilian competition law by pursuing an infringement action TCT because (1) TCT delayed the negotiations over the terms of a license and did not establish its exhaustion defense; (2) Ericsson offered to arbitrate the amount of the royalty; and (3) Ericsson does not compete with TCT in the market for smartphones or tablets. 

It appears from this blog post, which I previously noted here, that a French court denied Ericsson a preliminary injunction against TCT Mobile in 2013, but I haven't investigated yet to determine if the Brazilian patents are exact counterparts to the ones at issue in the French case.

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