Rio court confirms Via pool offer can satisfy FRAND without bilateral negotiations

Context: NEC sued HMD and Multi in Brazil, alleging infringement of PI 0306434-4, which covers technology implemented by Low Power Spectral Band Replication (LP-SBR), an optional feature of the Advanced Audio Coding (AAC) audio-compression standard. HMD denied infringement, challenged the patent’s validity, and argued that NEC had failed to comply with its fair, reasonable, and non-discriminatory (FRAND) licensing obligation. by not making a bilateral licensing offer. NEC maintained that its offer through the Via Licensing Alliance (Via) patent pool satisfied any FRAND obligation (February 9, 2026 ip fray article). 

What’s new: The 3rd Business Court of Rio de Janeiro confirmed the preliminary injunction against HMD and Multi after finding NEC’s patent valid and infringed. The court held that the patent was not essential to the AAC standard because LP-SBR is optional, meaning no FRAND obligation arose, but nevertheless found that NEC would have satisfied FRAND through its Via pool offer. It rejected HMD’s argument that NEC was required to make a bilateral offer and found that HMD’s failure to counteroffer or identify concrete reasons why the pool terms were not FRAND supported a finding of hold-out. 

Direct impact: HMD and Multi must immediately cease infringing the patent-in-suit and cannot launch new devices implementing the patented LP-SBR technology in Brazil, subject to a BRL 10,000 (US$1,937) daily fine for non-compliance. The defendants were also ordered to pay material damages, to be determined in post-judgment proceedings, and BRL 100,000 (US$19,374) in moral damages. Multi’s liability for material damages is limited to infringement through December 2024, while HMD remains liable for the full infringement period. 

Wider ramifications: The ruling strengthens the position of patent pools in Brazilian FRAND disputes by rejecting the notion that an implementer can insist on bilateral negotiations where a pool license is already available on FRAND terms. It also signals that an implementer that rejects a pool offer may need to substantively engage with its terms to demonstrate licensing willingness. The decision adds Brazil to the jurisdictions confronting whether FRAND requires access to bilateral licensing alongside established pool-based licensing channels.