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COMPETITION LAW IN BRAZIL: 2018 OVERVIEW 27

Early decisions in the case (CADE’s THE FINAL ADMINISTRATIVE
statement of objection and technical reports from (a) DECISION SEEMS TO STRIKE
CADE’s Superintendence; (b) CADE’s General Attorney; AN APPROPRIATE BALANCE OF
and (c) the Office of Federal Public Prosecutors) indicated IPRS AND ANTITRUST POLICY,
a trend towards the definition of a dangerous legal REJECTING CLAIMS FOR
framework, where regulators would be entitled to review ANTITRUST INTERVENTION
the balance struck by Congress when passing the IP IN CASES OF MERE
Statute. Under this proposed framework, the enforcement ENFORCEMENT OF LAWFULLY
in Court of a lawfully obtained IPR would be subject to OBTAINED RIGHTS AGAINST
antitrust scrutiny following the rule of reason. INFRINGEMENT ACTIONS. IP
The antirust regulator would be LAW IS MEANT TO OPTIMALLY
entitled to balance pros and cons of the enforcement BALANCE INCENTIVES TO
of a right, therefore retaining powers to review and CREATE WITH THE HARMS
actually prevent the enforcement of the IP Statute CAUSED BY EXCLUSIVITY. THE
in certain cases. Such a trend was gaining traction, BRAZILIAN CONGRESS MADE
increasing uncertainty and generating negative THAT BALANCING, DECIDING
spillovers in other matters and industries. For its THE OPTIMAL AMOUNT OF IP
potential to impact several other industries (and not PROTECTION/EXCLUSIVITY
only the automotive), this matter received considerable TO FOSTER INNOVATION.
attention from various stakeholders. ANTITRUST LAW MUST NOT
After a decade-long investigation, BE USED TO SECOND-GUESS
CADE’s Tribunal closed the case. A tight 4x3 majority THIS BALANCE.
vote held that the enforcement of lawfully obtained
rights does not constitute an unlawful conduct. The majority noted that the conduct at issue
was squarely within the rights conferred by the IP Statute, so the alleged anticompetitive
effect (prohibition of autoparts manufacturers from copying the designs) was actually the
outcome of the IP policy in that specific market, and CADE was not entitled to use the rule
of reason to reverse such policy.
The final administrative decision seems to strike an appropriate balance of
IPRs and antitrust policy, rejecting claims for antitrust intervention in cases of mere enforcement
of lawfully obtained rights against infringement actions. IP law is meant to optimally balance
incentives to create with the harms caused by exclusivity. The Brazilian Congress made that
balancing, deciding the optimal amount of IP protection/exclusivity to foster innovation. Antitrust
law must not be used to second-guess this balance.
To the majority, only if there were misuse of an IPR the rule of reason would
be applicable, maintaining CADE’s ability to review conducts in opposition to or not expressly