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COMPETITION LAW IN BRAZIL: 2018 OVERVIEW 29

For several years, CADE’s Superintendence investigated the conduct and
finally concluded that the lawsuits did not constitute a sham litigation strategy. Based on the
Tribunal’s decision on the ANFAPE case (discussed above), the Superintendence also dismissed
the SO claim that enforcers should weigh pros and cons of the lawful exercise of an IPR.
CADE’s Tribunal released the final administrative decision in the second
semester of 2018. Relying on US precedents, the Tribunal unanimously held that there was
no sham litigation conduct under the PRE, POSCO and fraud litigation/misrepresentation
tests, nor any kind of misuse of IP rights. The Tribunal recognized that Lundbeck merely
presented to the courts a legitimate dispute of legal interpretation regarding the protection of
data packages in Brazil.
According to the Commissioners, Lundbeck’s lawsuits are not a sham
because the Brazilian IP statute is not clear on whether protection against unauthorized use
should be awarded to data package of drugs. Thus, it would be possible to argue for different
interpretations. Furthermore, Lundbeck’s claims were upheld by courts, evidencing that they
were not baseless, but rather promoted a legitimate debate based on legal interpretation.
Additionally, CADE found that Lundbeck did not file a series of lawsuits with the potential
of harming competition and there was no evidence that it misrepresented facts to courts.
Regarding the allegation of misuse of IP rights, CADE
held that Lundbeck merely presented a legal dispute RELYING ON US PRECEDENTS,
to courts to establish whether it had IP rights over its THE TRIBUNAL UNANIMOUSLY
data package. Therefore, no misuse of IP rights with HELD THAT THERE WAS NO
anticompetitive effects could be found. SHAM LITIGATION CONDUCT
With this decision, CADE’s Tribunal UNDER THE PRE, POSCO
showed a lot of maturity in handling sham litigation AND FRAUD LITIGATION/
accusations involving the enforcement of IPRs. Like in MISREPRESENTATION TESTS,
the Anfape case, CADE demonstrated self-restraint and NOR ANY KIND OF MISUSE
appropriately balanced the limits of antitrust law with OF IP RIGHTS. THE TRIBUNAL
regards to the enforcement of IPRs. This case consolidates RECOGNIZED THAT LUNDBECK
the view that IPRs and antitrust law are best viewed as MERELY PRESENTED TO
complementary regimes that share the goal of maximizing THE COURTS A LEGITIMATE
social welfare and that it is against the basic principles DISPUTE OF LEGAL
of antitrust law to apply the rule of reason to redefine INTERPRETATION REGARDING
the balance set by the legislature in determining the right THE PROTECTION OF DATA
amount of IP protection. PACKAGES IN BRAZIL.

10 In the Administrative Process No. 08012.011508/2007-91, Eli Lilly was
fined in 2015 for allegedly having practiced the following conducts: (i)
patent filing for a component it was aware could not be patented; (ii) attempt
to broaden the initial scope of the patent filing after the Brazilian PTO’s
negative decision; (iii) contradictory claims before the Brazilian PTO and the
Courts; (iv) request for Exclusive Market Rights after the 5-year period since
the drug commercialization approval; (v) repeated lawsuits.