Brazil: Patent Litigation

The Brazilian system is divided into two branches: Infringement Lawsuits are filed in State Courts, and Invalidity Lawsuits are filed in Federal Courts. Usually, Infringement Lawsuits are filed in the Defendant’s domicile. However, if the lawsuit seeks indemnification, the Plaintiff may decide to file it in its own domicile or where the damages have occurred. On the other hand, an Invalidity Lawsuit can be filed in any Federal Court where the BPTO has an office (i.e., in Rio de Janeiro or Brasilia) or in a Federal Court where the Plaintiff has its headquarters.

It is noteworthy that Invalidity Lawsuits can be filed in two distinct situations: (i) to declare that a granted patent is invalid for not meeting the patentability requirements foreseen by the Brazilian IP Statute; or (ii) to declare an act or a decision by the BPTO is invalid for formal or material errors. In the first scenario, the Lawsuit must be filed against the BPTO and the titleholder, whilst in the second scenario, it can be filed solely against the BPTO.

Among all 26 states (and a Federal District), São Paulo and Rio de Janeiro are the only to count with Judges exclusively dedicated to cases involving Business Law and/or IP Law in its State Courts. Seven specialized Judges serve the Rio de Janeiro State Court, but there are no specialized panels in the Appellate Level. In São Paulo, two specialized Judges serve the State Court and there are two specialized panels with jurisdiction over IP Law cases.

With regard to the specialized Judges in the Federal Courts, Rio de Janeiro is the only unit of the federation to have a judicial structure specialized in IP. There are four specialized Judges in trademarks and patents.

The proceedings carried out by specialized Judges are usually faster and more precise than those which are ruled by ordinary Judges, though specialized Judges do not have a technical background and almost always appoint an independent expert to assist them with the technical analysis of infringement or fulfilment of patentability requirements.

Concerning Infringement Lawsuits, after the Plaintiff files its complaint, the Defendant is summoned to file a reply in 15 (fifteen) business days. In Invalidity Lawsuits, the term for replying is more extensive: 60 (sixty) business days. In both types of Lawsuits, the Plaintiff will be given 15 business days to comment on Defendant’s Reply.

Now that the arguments have been put before the Judge, an organizing decision is issued pointing out the controversial and non-controversial debates in the lawsuit and asking the parties if they wish to produce additional evidence to support their claims. Usually, parties request the production of a technical report by a court-appointed expert, who will be questioned and assisted by experts appointed by each party. Even if the parties do not request the production of a technical report, the Judge may order it ex officio. The timeline and costs involved in the technical evidence production vary in accordance with the case’s complexity.

Once the court-appointed expert presents the technical report, the parties are given 15 business days to comment on the report. After considerations about the report are heard, Judges are usually ready to issue the decision. There is a possibility, however, that the Judges will schedule a hearing with the court expert and the parties and their technical assistants if needed to solve pending issues and answer additional queries.

Formally, a final decision can always be appealed to a panel of Justices, as long as it is filed within 15 business days. Usually, an appeal against a final decision suspends its effects, unless a preliminary injunction had been granted.

On the other hand, only interim decisions about the following topics can be appealed: provisional remedies (such as an injunction relief); the merits of the case; denial of the allegation of an arbitration agreement; the piercing of the corporate veil; denial of the request for free legal aid or the granting of the request for its revocation; disclosure or possession of a document or thing; exclusion of a co-party; denial of the request for the limitation of joinder of parties; admission or rejection of third-party interventions; grant, modification, or revocation of the stay of execution; reallocation of the burden of proof; other cases expressly provided by law. An interlocutory appeal may also be filed against any interim decisions rendered at the enforcement stage. Even though there are Superior Court precedents extending possibilities of filing interlocutory appeals, the subject matter is much more restricted than in final appeals.

As a rule, interlocutory appeals do not suspend the effects of the appealed decision. Nevertheless, if the appellant proves the risk of irreversible damage and the appeal’s likelihood of success, the Reporting Appellate Judge assigned to the case may suspend the interim decision until the Panel trials the appeal and issues a final decision.

The Appellee is given 15 business days to reply to the Appeal (regardless of whether it was filed against a final or an interim decision) counted from the day the appealed decision was published.

The decision on the suspension of the appealed interim decision may also be appealed by the party who was prejudiced.

Moreover, all decisions and acts by the Judge can be subject to a motion for clarification, which must be filed within 5 days counted from the day the decision or act was published, and it is decided by the Judge who originally issued the appealed act or decision. A motion for clarification is suited to clarify any obscurity in the decision, fix a clerical mistake, remedy a contradiction or decide on a request that was ignored (omission).

For the sake of Civil law, Article 42 of the Brazilian IP Statute sets forth that a patent confers on its proprietor the right to prevent third parties from exploiting, such as, manufacturing, using, offering for sale, selling or importing for such purposes without his consent: (i) a product that is the subject of a patent; (ii) a process, or product directly obtained by a patented process.

However, Article 183 is explicit that a crime is committed against a patent of the invention or a utility model patent by one who (i) manufactures a product that is the subject matter of a patent of the invention or a utility model patent, without authorization of the patentee; or (ii) uses a means or process that is the subject matter of a patent of invention, without authorization of the patentee. Moreover, Article 184 determines that a crime is committed against a patent of the invention or a utility model patent if one: (i) exports sell, exhibits or offers for sale, maintains in stock, hides or receives, with a view to using for economic purposes, a product manufactured in violation of a patent of the invention or of a utility model patent, or that is obtained by a patented means or process; or (ii) imports a product that is the subject matter of a patent of the invention or of a utility model patent or is obtained by a means or process patented in Brazil, for the purposes mentioned in the previous item, and that has not been placed on the external market directly by the proprietor or with his consent.

Yes, the patent holder is further guaranteed the right to prevent third parties from contributing to the practice by other parties of the acts referred above.

It is also a crime, under Brazilian Law, to supply a component of a patented product, or material or equipment for carrying out a patented process provided that the final application of the component, material, or equipment necessarily leads to the exploitation of the subject matter of the patent.

Aside from Civil law consequences of indirect or contributory infringement, article 186 sets forth that crimes against patent rights are committed even if the violation does not affect all the claims of the patent or if it is restricted to the use of means equivalent to reaching the same effect of the subject matter of the patent.

As provided for in article 41 of the IP Statute: “The scope of the protection conferred by the patent shall be determined by the content of the claims and interpreted based on the specifications and drawings.” In this sense, although Article 186 states that patent infringement occurs even if the infringement is “limited to the use of means that are equivalent to the claimed matter”, regarding the “doctrine of equivalents”, there is no binding precedent establishing a test or standard for applying the doctrine.

The lack of a clear binding precedent on claims construction creates an uncertain scenario with a number of first instance judges adopting certain methods (such as the “TMC test” – acronym for “Creative Motivation Test” – or the “three steps test”, which arises also from the practice of IP litigation lawyers).

As mentioned in point 1 above, the Court usually appoints an independent expert who will be questioned and assisted by technical assistants appointed by the parties to perform claim construction and other technical analysis. This means that claim construction will also heavily depend on the expert’s own understanding of how to interpret a claim, meaning the parties must be able to adapt or adjust their approach throughout the procedure.

The key defence to patent infringement is convincing the expert (and of course the Judge) that the product or process in suit does not read into the patent claims.

It is currently controversial in Case Law whether a Defendant can argue that the alleged infringed patent is invalid. Some precedents and legal doctrine point out that patent invalidity can only be discussed in an Invalidity Lawsuit filed in the Federal Court against the patent holder and the BPTO. However, recent decisions have accepted in some cases the possibility of incidentally arguing patent invalidity as a defense of matter in Infringement Lawsuits.

Also, Brazilian IP Statute sets forth explicit exceptions to patent rights:

1. to acts practiced by unauthorized third parties privately and without commercial ends, provided they do not result in harm to the economic interests of the patent holder;
2. to acts practiced by unauthorized third parties for experimental purposes, related to studies or to scientific, or technological research;
3. to the preparation of medicine according to a medical prescription for individual cases, executed by a qualified professional, as well as to medicine thus prepared;
4. to a product manufactured following a process or product patent that has been placed on the internal market directly by the holder or with his consent;
5. to third parties who, in the case of patents related to living matter, use, without economic ends, the patented product as the initial source of variation or propagation for obtaining other products; and
6. to third parties who, in the case of patents related to living matter, use, place in circulation or commercialize a patented product that has been introduced lawfully onto the market by the holder or his licensee, provided that the patented product is not used for commercial multiplication or propagation of the living matter in question.

It is not a consent in Case Law whether the list mentioned above is strictly interpreted or not, i.e. if there are other possible exceptions for patent rights. Given that several Justices in the Brazilian Supreme Court and in the Superior Court of Justice follow the civil-constitutional doctrine of Pietro Perlingieri (which is deeply explored in “Il Diritto Civile nella legalità constituzionale”, Vol. 1, Edizioni Scientifiche Italiane, 2020), it is likely that a Court could decide that Constitutional provisions may apply directly to a specific case, thus identifying an exception that is not expressly foreseen in the IP Statute.

Article 8 of the Brazilian IP Statute sets forth that the patentability requirements are (i) novelty, (ii) non-obviousness, and (iii) industrial application. Additionally, according to Article 25, the claims must be based on the specification, characterizing the particularities of the application, and defining clearly and precisely the subject matter to be protected.

Thus, any patent that fails to satisfy the patentability requirements mentioned above is subject to an invalidity claim.

Even though most Invalidity Lawsuits are based on allegations of failure to meet the patentability requirements, there are other causes for patent nullity. For instance, according to article 18 of the Brazilian IP Law Statute, the following is not patentable:

1. that which is contrary to morals, good customs and public security, order and health;
2. substances, matter, mixtures, elements or products of any kind, as well as the modification of their physical-chemical properties and the respective processes of obtaining or modifying them, when they result from the transformation of the atomic nucleus; and
3. living beings, in whole or in part, except transgenic micro-organisms meeting the three patentability requirements – novelty, inventive activity and industrial application – provided for in article 8, and which are not mere discoveries;

Furthermore, according to article 22, if a granted patent does not refer to a single inventive concept, it could be invalidated. A patent could also be invalidated when a titleholder amends the claim set to widen it after the beginning of the examination, according to article 32. In any event, the interpretation of article 32 is currently being discussed in multiple lawsuits.

According to article 11, an invention and a utility model are new if they are not part of state of the art, which consists of everything that became accessible to the public before the filing date of the patent application, by means of a written or oral description, use, or by any other means, in Brazil or abroad. Some exceptions are described in Articles 12, 16, and 17.

For determining whether a patent is inventive, the general practice considers that the need to gather multiple documents is evidence of the fulfilment of the requirement (even though not a piece of absolute evidence).

In Brazil, a patent application can only be modified until the end of the examination process (including appeals). In this sense, once the examination is requested, it is possible to change the claim`s scope, but several restrictions will apply.

However, when there is an Invalidity lawsuit, a decision by the Federal Court may amend the claims to change the scope of the protection. It is called partial nullity of the patent. If that is the case, it will be up to the State Court Judge (in the Infringement Lawsuit) to assess the need for a new technical report or to reanalyse the occurrence of patent infringement considering the claims’ amendments. Therefore, as noted, the amendment of a granted patent is only possible if ordered by the Federal Court.

Not anymore. Under the terms of article 40, an invention patent shall remain in force for 20 (twenty) years and a utility model patent for 15 (fifteen) years from the date of filing.

For years, the IP Law Statute foresaw a rule that the term would not be less than 10 (ten) years for patents of invention and 7 (seven) years for utility model patents, counted from the grant. Even though it was not a term extension per se, this rule would prevent applicants from being harmed in the case of the BPTO taking more than 10 years to exam the application, which was quite common especially in pharmaceutical, chemical, and telecommunication fields.

However, in 2021, the Supreme Court has found that this rule is unconstitutional. All patent applications waiting for examination, if granted, will become patents with a 20-year term counted from the date of filing (they will no longer enjoy the “term extension” even if the BPTO takes more than 10 years to exam them).

Nevertheless, with the intent of promoting legal certainty, the Supreme Court has restricted the effects of the decision. The rule is considered unconstitutional as of the publishment of the Supreme Court’s decision, with some exceptions. Briefly put:

1. All pharmaceutical and medical device patents granted from April 8, 2021, will have their terms of 20 years counted from the date of filing;
2. Any other kind of patent that is the subject of at least one lawsuit, filed before April 7, 2021, in which there is a discussion about the sole paragraph’s constitutionality;
3. Pharmaceutical and Medical Device Patents that the day of the publishment of the Supreme Court’s decision, are valid only due to the provision of the sole paragraph, will have their dates reduced in accordance the 20-year filing rule.

The above items are autonomous and shall not be read as joint requirements. This means, for example, that if a patent covering a pharmaceutical is granted with the term of art. 40, the sole paragraph has not been challenged at the courts but is still valid, its term will regardless be reduced to 20 years from the date of filing of the patent application, which in some cases will lead to the extinction of the patent.

This said, regardless of the term reduction, all “concrete effects” derived from patents that were effective only due to the sole paragraph will still be considered valid until the date of publishment of the decision. For instance, the effects of a licensing agreement signed when the patent was valid only due to the sole paragraph. Also, a purchase of patent-protected drugs that took place when the patent was valid only due to the sole paragraph will also remain valid, and the buyer cannot seek damages.

There are currently bills about to be voted by Congress debating the possibility of patent extensions, as a patent term adjustment – PTA, although there is no prediction when or if they will pass or not.

Usually, the Court will appoint an unbiased and impartial expert, or he/she will be jointly appointed by the parties to review the case files and submit a report on the technical issues under debate. Furthermore, the parties may also hire their own experts (technical assistants), who will present an opinion about the matter, question the court-appointed expert, and assist him/her.

Usually, the court expert`s report will be submitted in writing, but the Judge can order a hearing on this matter where the experts will testify, and the parties can ask questions about his/her opinion.

Technically, the Judge can disagree with the technical report, but it is extremely unusual, as most Judges vastly refer to the technical report in their final decisions.

Expert witnesses play a key role in supporting the judge to grant or reject a pledge of infringement or invalidity of the patent rights.

In Brazil, there is no form of disclosure available. However, based on the parties’ request or by his/her initiative, the Judge can order additional information from third parties.

The parties may also request a provisional remedy for disclosing documents, such as a witness deposition or search and seizure of files. In this case, it is necessary to prove that this request is crucial to support their claims.

When the burden of proof is shifted to the other party, Article 42 states:

A patent confers on its proprietor the right to prevent third parties from manufacturing, using, offering for sale, selling or importing for such purposes without his consent:

1. a product that is the subject of a patent;
2. a process, or product directly obtained by a patented process;
   1. The patentee is further guaranteed the right to prevent third parties from contributing to the practice by other parties of the acts referred to in this article.
   2. The rights in a process the patent will be violated, insofar as item II is concerned when the holder or owner of a product fails to prove, through the specific judicial ruling, that it was obtained by a manufacturing process different from that protected by the patent.

Also, the party may present expert reports analysing the products side-by-side to enhance the chances of success in a preliminary injunction request and file an autonomous lawsuit for the anticipated production of evidence.

According to article 206 of the IP Law Statute, the judge can determine the confidentiality of the case files, the hearings, and judgment sessions. It is unusual for a Judge to reject a request for confidentiality, even though the adversary party may oppose it.

Also, if one party wants to keep a document as confidential from the other party, it is possible to ask the Judge to keep that information classified and with access solely to the Court and to the court-appointed expert. However, it is extremely rare for a Judge to grant such a request.

According to Article 51 of the IP Law Statute, any third party with a legitimate interest or BPTO may file an administrative opposition proceeding within 6 (six) months of the patent`s granting. It is possible to file an invalidity lawsuit before the Federal Court during the examination of the opposition proceeding, but the proceeding will be suspended until a final (judicial) decision.

In Brazil, the administrative procedure is different from the patent litigation system. The third-party or BPTO can file an invalidity lawsuit at any time provided the patent is still valid; on the other hand, the applicant can file a declaratory validity lawsuit within 5 (five) years from the issuance of the BPTO`s decision. In addition, there is a possibility to file a lawsuit in both cases requesting a preliminary injunction relief.

Brazil follows a Civil Law tradition, although the Code of Civil Procedure foresees Case Law as relevant for Judges to take decisions. However, most precedents are not binding even if they were issued by a Brazilian Court, although many Judges will be open to hearing about decisions issued by other Courts (regardless of their nationality) and discussing them in order to seek inspiration.

A rare exception is foreseen in the Code of Civil Procedure and in the Brazilian Federal Constitution – there is a specific procedure to be filed before the Superior Court of Justice to apply foreign decisions in Brazil under very strict circumstances. After approval by the Superior Court of Justice, the jurisdiction of the enforcement of foreign judgments lies with the Federal Courts.

In order to define the jurisdiction of a lawsuit involving a patent matter, it is necessary to identify: the claim being challenged, the parties involved, and eventually, the location of the damage, as well as in compliance with the boundaries established by the Federal Constitution, Code of Civil Procedure, and Brazilian IP Law Statute.

As mentioned in point 1 above, the Brazilian system is divided into two branches: Infringement Lawsuits are filed in State Courts, and Invalidity Lawsuits are filed in Federal Courts.

Usually, Infringement Lawsuits are filed in Defendant’s domicile. However, if the lawsuit seeks indemnification, the Plaintiff may decide to file it in its own domicile or where the damages have occurred.

On the other hand, according to article 57 of the IP Law Statute, the patent invalidity lawsuit shall be filed in any Federal Court where the BPTO has an office (i.e., in Rio de Janeiro or Brasilia) or in a Federal Court where the Plaintiff has its headquarters.

The options for alternative dispute resolution in patent cases is mediation and arbitration. However, the use of said methods is unusual in Brazil, and there are no mandatory ADR provisions in patent cases. Furthermore, it is important to mention the possibility of reaching an agreement between the parties to settle the issue amicably at any stage of the proceedings, although the Plaintiff may need to bear financial costs arising from that decision, depending on the stage of the procedure.

According to the IP Law Statute, there is no mandatory procedural step to be satisfied before filing a patent action (Infringement lawsuits or Invalidity Lawsuits).

In infringement lawsuits, although not mandatory, in some cases, it is recommendable to send a cease-and-desist letter requesting the infringer to cease the patent infringement voluntarily. The lack of a response by the infringer or the denial of infringement can increase the chances of obtaining an injunction.

In other cases, it is important to file an advance production of evidence when the plaintiff needs to collect further evidence of the infringement.

Regarding the limitation periods for commencing an action, as mentioned in point 16: the third-party or BPTO can file an invalidity lawsuit at any time provided the patent is still valid; on the other hand, the applicant can file a declaratory validity lawsuit within 5 (five) years from the issuance of the BPTO’s decision.

As a rule, with regard to infringement lawsuits, the general limitation period is five years counted from the date in which the Plaintiff became aware of the infringement.

The parties that have standing to bring a patent infringement action are:

1. the patent holder;
2. the co-owner;
3. the exclusive licensee;
4. the non-exclusive licensee; and
5. any third party with procedural interest to protect the patent with powers to defend the patent on the patent holder`s behalf.

The licensee only has to stand if the license agreement expressly states that right. It is highly recommended that the license agreement is registered at the BPTO, pursuant to article 62 of the IP Statute.

Similar to the Administrative Nullity Proceedings, according to article 56 of the Brazilian IP Statute, the BPTO or any third party with a legitimate interest may file a lawsuit seeking the invalidity of the patent. In this sense, there is no need for a particular connection to the patentee to have the standing to bring an invalidity action.

There are interim injunctions available in patent litigation proceedings for both infringement lawsuits and invalidity lawsuits. Concerning the preliminary injunction requests, Plaintiff must comply with two requirements: (i) present arguments with strong pieces of evidence to convince the judge (fumus boni iuris), and (ii) prove the risk of irreparable harm (periculum in mora).

If a patent infringement lawsuit ends, the final remedies are, as a general rule, a permanent injunction prohibiting the party from exploring the patent and an order to pay indemnification for losses and damages. In some cases, it is also possible to request moral damages – even for companies.

In Brazil, the common remedies sought are the prohibit the party from exploring the patent and order to pay indemnification for losses and damages, both remedies are typically ordered.

The damages for patent infringements can be calculated in three ways:

1. per the benefits that the aggrieved party would have made in the violation and occurred;
2. per the benefits that the patent infringer earned; and
3. per the remuneration that the patent infringer would have paid to the titleholder of the violated patent throughout the granting of a license that would have allowed it to exploit the property lawfully.

In addition, as punitive damages, the judge can also order to collect the products from the market and/or destroy the infringement goods.

A timeline for a patent litigation procedure varies heavily on the level of complexity of the subject matter and on the number of appeals and petitions filed (especially by the Defendants). However, usually, a final first instance decision is issued within less than 1,5 years, and a definitive decision is reached within less than 5 years.

Yes. It is possible to file a lawsuit for declaration of, for example, the non-existence of a right to claim for damages or a right to seek an injunction based on infringement or to file a lawsuit for declaration of the existence of a right of prior use.

Declaratory relief is advisable before the patent holder files an infringement lawsuit. In this case, Plaintiff can file declaratory non-infringement proceedings, but this is only possible after an allegation of patent infringement. Moreover, Plaintiff should prove that an actual or imminent injury is concrete.

Costs vary significantly according to the complexity of the case. The typical costs are court fees, fees charged by the court-appointed expert, technical assistant fees, and legal fees. The latter usually ranges from U$200,000 to U$ 500,000.

In general, the losing party should reimburse the winning party’s legal costs. However, the legal cost consists of court-related fees.

In Brazil, the most prominent patent litigation growth areas have been since the past decade life sciences, oil& gas and telecommunications.

Considering the intense movement of all scientists in the world engaged in vaccine research due to the COVID-19 pandemic, in the future, laboratories may file lawsuits involving vaccine-related patents, as in any case involving medical issues.

Also, the so-called “Patent Term Adjustment – PTA lawsuits” are a contentious patent issue that is likely to increase in the next months, in the wake of the decision of the Federal Supreme Court in the Constitutionality Challenge (ADI) 5529, issued on May of 2021, which concluded for the unconstitutionality of sole paragraph of article 40 of the Brazilian IP Statute.

The rule that was removed for unconstitutionality determined that a patent’s term will not be less than 10 years for patents of invention and 7 years for utility model patents, counted from grant, except when BPO is prevented from proceeding with the examination as to the merit of the application, due to a proven pendente lite or for reasons of “force majeure”. In the judgment, the Supreme Court agreed that the rule is considered unconstitutional as of the publishment of the Supreme Court’s decision, excepting patents related to health treatments, to which the decision was immediately applicable with retroactive effects.

The “PTA lawsuits” are being filed by owners of patents related to health treatments that were affected by the Supreme Court decision. These patent owners argue that the examination of their patent applications took more than 10 years due to the BPTO’s exclusive fault. Based on the constitutional guarantee of reasonable duration of procedures and the general deadlines for the Federal Administration (of which BPTO is part), the plaintiffs of these lawsuits request an adjustment of the term by the Federal Courts so as to compensate for the excessive time the BPTO took to conclude or even begin examination and the loss of term suffered after the Supreme Court decision.

In some cases, preliminary injunctions were awarded by Federal Courts to reinstate patents that were extinct following the Supreme Court decision. This led to complaints made to the Supreme Court, which is still to decide whether this kind of PTA lawsuit would violate the effectiveness of the decision on the Constitutionality Challenge ADI 5529.

Moreover, because 5G technology has recently arrived in Brazil, it is likely that SEP and FRAND terms are going to be subject to major Lawsuits, as there are no clear precedents or regulations in that matter in Brazil.

Even though highly qualified, many Brazilian judges are unfamiliar with IP matters. This fact makes their expertise to be proven insufficient in patent cases, which involve complicated technical issues.

Unfortunately, when it comes to patents in Brazil, the BPTO`s backlog needs to be mentioned, as per the countless losses resulting from this slow patent application analysis. In this sense, although the backlog has drastically reduced and the time of the patent prosecution as well , there are still many challenges to overcome.

It is worth mentioning that, recently, the Brazilian Association of Intellectual Property – ABPI, filed a Public Civil Action against the Federal Government and the BPTO, seeking the correction of this state of non-compliance in which the Brazilian Industrial Property ss ystem currently finds itself. In general terms, it seeks the creation of a plan of goals and measures, to be met in a phased manner.

On April 2022, a court ruling was published that partially granted the requests of the ABPI, granting a preliminary injunction, ordering the BPTO to submit, within 90 days, an updated and detailed diagnosis report of its operation, exposing its main points of ineffectiveness and inefficiency, and the material, budgetary and functional needs for its improvement, in addition to presenting, within the same period, a list of measures to be adopted, as well as adequate planning, referring to the years 2022 to 2024, and the respective budget forecast. Also, ordering the Federal Government to allocate to the BPTO the revenues necessary for the implementation of the plan to be presented by the agency.

The appeals filed by the Federal Government and the BPTO are currently awaiting judgment, but the preliminary injunction has been suspended for the time being by the Federal Appellate Court.