Patentes essenciais e defesa da concorrência no Brasil: fundamentos econômicos e a experiência do Cade

The growing adoption of technological standards has increased the importance of standard-essential patents (SEPs) and licensing commitments under fair, reasonable, and non-discriminatory (FRAND) terms. In this context, disputes frequently arise regarding the boundaries between the legitimate exercise of intellectual property rights and potentially anticompetitive conduct. This article examines the role of the Brazilian Administrative Council for Economic Defense (CADE) in cases involving SEPs, aiming to assess under which circumstances disputes related to standard-essential patents may justify intervention by the Brazilian competition authority. To this end, the paper discusses the economic foundations of intellectual property protection and standard-essential patents, as well as the principles underlying competition law enforcement in Brazil. It then analyzes the two SEP-related cases submitted to CADE. The findings suggest that the authority has adopted a cautious approach, distinguishing private licensing disputes from conduct capable of producing anticompetitive effects. The article concludes that CADE’s role is not to resolve contractual conflicts between patent holders and implementers, but rather to protect competition as a collective interest, requiring evidence of potential harm to the competitive process before antitrust intervention is warranted.