Defesa da Concorrência e Patentes Essenciais: Análise da Evolução da Jurisprudência do CADE

CADE is one of the main antitrust agencies in the world that has already issued decisions on the interface between standard-essential patents and antitrust. Despite CADE’s relevance, academic discussions on the topic are still scarce in Brazil. This article seeks to partially fill this gap by discussing CADE’s decisions involving standard-essential patents from a critical perspective. As noted, CADE’s decisions concern allegations of patent hold-up through injunctions. Nonetheless, the criteria to identify under which circumstances the use of injunctions by standard-essential patent holders in Brazil may (or not) raise competition concerns are still unclear. Thus, we discuss suggestions to restrict antitrust investigations to cases where SEP owners have clear exclusionary incentives and to establish the refusal of mediation/arbitration proposals by implementers as a safe harbor for standard-essential patent owners to seek injunctions, in order to ensure legal certainty.