Page 26 - COMPETITION LAW_Flip

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INTELLECTUAL PROPERTY

AND ANTITRUST LAW

Ademir Antonio Pereira Jr.
Mário André Machado Cabral
Luiz Felipe Rosa Ramos

The past months have seen major developments in the intersection of IP
and antitrust in Brazil. Investigations have become more sophisticated and enforcers have been
increasingly interested in learning and exploring this relevant area.
Furthermore, two very long investigations have finally come to an end,
establishing the limits of competition law intervention over the enforcement of lawfully obtained
intellectual property rights (“IPRs”). While a more interventionist view had been taking central
stage in staff reports and the initial statement of objections, the final administrative decisions
from CADE’s Tribunaal seem to strike an appropriate balance of IPRs and Competition Policy.

ANFAPE: enforcement of IPRs in the auto parts aftermarket

In 2007, an association of auto-parts manufacturers named ANFAPE accused
car makers Fiat, Ford and Volkswagen of anticompetitive conduct for bringing lawsuits to
enforce industrial design rights (equivalent to design patents) over automobile spare parts against
infringement actions . The complainant sought an administrative decision ordering IPR holders to
8
stop enforcing their design patents against players in the aftermarket making identical copies of
the design. Interestingly, the complainants were not seeking a license and it was well established
that there had not been a refusal to license.
This decade-long investigation finally came to an end in 2018, establishing
the limits of competition law intervention over the enforcement of lawfully obtained IPRs.
This investigation was largely seen as a landmark case, with potential to shape the intersection
of IPRs and antitrust policy in Brazil. CADE’s President named it the most relevant single-
firm conduct case in over a decade.

8 See Administrative Process No.
08012.002673/2007-51. We represented
Volkswagen in this matter. Any opinions and
views expressed here are our own and do not
represent our client’s position in the case.