News | Granting of the patent is essential to file an infrigement lawsuit

In a recent decision, the Third Panel of the Superior Court of Justice (STJ) established that the granting of a patent is a prerequisite for filing an indemnity patent infringement lawsuit.

In this regard, the Third Panel of the STJ denied a company’s claim for compensation against a competitor. In the case in question, the patent of the company that filed the infringement lawsuit has not yet been granted by the Brazilian PTO.

The rapporteur, Minister Nancy Andrighi, pointed out that, in this case, there is no way to guarantee that, at the end of the prosecution before the Brazilian PTO, the patent will be granted. Despite this decision, the Minister highlighted the retroactive effect based on the date of publication of the application, if the patent is granted. This would be due because, as from the publication of the patent application, its claims become public.

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