Patentes essenciais a padrões e incerteza sobre essencialidade: efeitos assimétricos para o Brasil como jurisdição implementadora e os caminhos institucionais de redução da opacidade

This article examines the effects of uncertainty about the essentiality of Standard Essential Patents (SEPs) in a purely implementing jurisdiction such as Brazil. Starting from the empirically supported finding that no Brazilian company figures among the main holders of SEPs related to the 5G standard — characterizing what is termed the innovation paradox — the article draws on Schuett and Wipusanawan’s (2025) informational asymmetry model and Zheng’s (2024) comparative jurisdictional analysis to argue that essentiality uncertainty, arising from the self-declaration system without institutional verification, produces more severe asymmetric effects in purely implementing jurisdictions. It artificially raises the costs of access to standardized technology and creates structural barriers to entry for small and medium-sized enterprises. The article analyzes Brazil’s institutional framework — comprising the INPI, CADE, and the Judiciary — identifying structural limitations that constrain the effectiveness of available instruments. It concludes that reducing opacity about essentiality is a public policy imperative, and that semi-automatic AI-based screening tools, combined with deepened CADE engagement on SEP/FRAND issues, represent promising and proportionate pathways given existing institutional capacities.