On 9 August 2026, the Third Business Court of Rio de Janeiro handed down what is believed to be the first judgment on the merits to address FRAND questions in depth in a Brazilian SEP case: NEC v HMD. Unlike the many interlocutory decisions issued in the past months involving FRAND aspects, this is a full adjudication after expert evidence.
The dispute arose from an offer made through the Via LA pool. NEC prevailed on every point, with the injunction confirmed, but the court set no royalty and no FRAND rate. Damages will be calculated under the criteria of the Industrial Property Law.
The patent was found not essential to the standard, so the FRAND passages are expressly alternative reasoning. Even so, the judgment draws together a line of procedural orders built over the past year, and it records what this court expects to see from each side.
The court held that it was for the defendant, “as an implementer genuinely willing to take a licence, to make a counteroffer or at the very least to put forward objective and concrete reasons demonstrating why the offer through the pool would not meet FRAND criteria, a burden it did not discharge at any point, from the first contact by the pool through to the closing submissions”.
The court further pointed to the defendant's “contradictory position, which simultaneously denies using the technology, challenges the validity of the patent and demands a bilateral
proposal”.
Since defences in SEP disputes tend to follow similar lines, our initial reading is that this court expects clearer demonstrations that an offer does not meet FRAND criteria or, further, a counteroffer from the implementer, even during the proceedings.
The holder’s conduct was examined as well. Earlier in the case the court asked the holder whether it would present a formal bilateral proposal. NEC declined, and the judgment went on to hold that a public offer through a pool, with “published rates and hundreds of licensees”, can satisfy the FRAND commitment without a bilateral proposal, in line with the recent ruling of the Rio de Janeiro Court of Appeal in Panasonic v HMD.
This was a pool case, and no counterclaim seeking a licence for the Brazilian territory was in play. Merits decisions in cases built on bilateral negotiations, such as InterDigital v TCL, are expected next.
On comparables, the judgment required specificity: a generic complaint that no competitor contracts had been produced was not accepted, because the defendant had not indicated which contracts or which competitors.
Brazilian FRAND case law is evolving quickly, and the routes open to each side vary with the court, the stage of the case and the record already built. Strategy, for holders and implementers alike, now turns on current knowledge of the most recent decisions and of each court’s practice.
Link to the decision: https://drive.google.com/drive/folders/1FhXFE7egsZsc-WgCAjdEuxj8kHgBe7YO?usp=sharing
