Quasi-Automatic No More? Colombia, the Andean Community and SEPs Injunction Standards

Colombia’s handling of preliminary injunctions in disputes over standard essential patents (SEPs) have attracted the scrutiny of the Andean Community. This blogpost revisits these developments from today’s vantage point, asking whether Colombian courts should align more closely with international trends that emphasise proportionality over quasi-automatic patent injunctions in SEPs cases.

In recent months, a significant development has emerged within the Andean Community (CAN) regarding the compatibility of Colombia’s patent-injunction practices with Andean law, specifically Decision 486, the regional common regime on industrial property. Following a petition filed by Ericsson on October 14, 2024, the CAN Secretariat has begun evaluating whether Colombia’s approach, particularly the thresholds courts apply when granting or denying preliminary injunctions, may be in breach of Decision 486. This development arose from Ericsson’s global litigation campaign targeting implementers of its patents incorporated into the 5G standards, in this case against Lenovo.

This blogpost comments on this complaint, and in general on how, we believe, requests for preliminary injunctions should be handled by Colombian courts in SEPs disputes.

Colombia’s judicial practice under scrutiny

Under Decision 486 (Articles 238 to 243), CAN member states must ensure that enforcement mechanisms, including injunctions, are effective, timely, and consistent with regional parameters under Andean law. Ericsson’s petition claims that Colombian courts have introduced additional requirements (when it comes to granting preliminary injunctions) which are not specifically codified under the Andean regime.

When assessing requests for preliminary injunctions, Colombian judges should typically require the claimant to demonstrate prima facie validity of the patent, credible evidence of infringement, and evaluate elements such as urgency, proportionality and risk of irreparable harm. But in practice, courts rely on a combination of Decision 486, particularly Articles 238 – 243, on provisional measures, along with provisions of the Código General del Proceso (Colombian Procedural Code - CGP). As a result, although Decision 486 envisions a quasi-automatic mechanism, Colombian courts apply a more cautious, evidence-intensive framework.

Specifically, Ericsson’s claim arose from the decision of 18 July 2024 by the Tribunal Superior of Bogotá (TSB) to deny on appeal the preliminary injunction granted by a first-instance judge (Superintendence of Industry and Commerce – SIC case no. 23-519034). This pushed Ericsson to lodge its complaint before the CAN Secretariat.

While the TSB recognized that Ericsson had demonstrated ownership of Colombian Patent 37362 and that Lenovo’s devices implemented the patented 5G-related technology, the requirements of necessity and proportionality under Article 590 of the Colombian CGP, had not been satisfied. Indeed, while Decision 486 requires patent owners to prove standing, the existence of the infringed right, and evidence allowing a reasonable presumption of infringement, the TSB held that Colombian procedural law also obliges the judge to assess whether the measure is necessary, effective, and proportionate.

The TSB thus eventually found that, even assuming there were serious indicia of infringement, the SIC had not justified why a less burdensome measure would be insufficient, nor why the injunction was proportionate notwithstanding that the allegedly infringed patent was a SEP. Consequently, the SIC’s order failed to meet these additional procedural guarantees and the TSB therefore revoked the preliminary injunction.

Yet, on February 6, 2025, the CAN Secretariat concluded that the TSB decision was incompatible with the Andean legal framework governing preliminary injunctions. The Secretariat was of the opinion that Articles 245–247 of Decision 486 establish a complete and self-sufficient set of requirements for granting precautionary measures, namely as mentioned the claimant’s standing, the existence of the infringed right and evidence allowing a reasonable presumption of infringement or its imminence.

Specifically, the Secretariat found that the Tribunal, by applying Article 590 of the CGP and incorporating additional criteria, introduced requirements that alter and restrict the uniform regional regime, thereby breaching the principle of supremacy and direct applicability of Andean law. In the Secretariat’s view, once the three elements under Article 247 are met, national authorities may not superimpose further procedural burdens. Consequently, it determined that the TSB reasoning, particularly its reliance on proportionality and the alleged absence of necessity, constituted an incorrect application of Andean law, amounting to non-compliance with the Andean Community IP regime.

It is important to emphasise that the opinion issued by the CAN Secretariat does not constitute a binding decision for Colombia. Rather, it functions as an institutional admonition that, should the Secretariat determine that sufficient grounds exist, may evolve into a formal non-compliance proceeding before the Andean Court of Justice. Thus, the interpretative practices of Colombian judges regarding the requirements applicable to preliminary injunctions in industrial property matters will remain under heightened institutional scrutiny.

Such scrutiny extends well beyond a debate over the potential incompatibility between Colombian procedural standards and Andean law. It also underscores a broader structural concern regarding the desirability of maintaining quasi-automatic preliminary injunctions for patent holders within Latin American jurisdictions. This institutional and doctrinal tension is likely to have repercussions for the evolution of global SEPs litigation strategies, not only in Colombia but also in countries such as Brazil, which have increasingly become focal points in these worldwide enforcement campaigns.

The international consensus on injunctions not being automatic

The CAN Secretariat’s insistence on quasi-automatic preliminary injunctions stands in contrast to established practice in several jurisdictions, where proportionality analysis has become integral to patent enforcement. This divergence raises questions about the compatibility of the CAN Secretariat’s rigid interpretation with norms in other countries that recognise the need for balanced remedies.

Across Europe, for example, proportionality is a structural requirement in patent enforcement (see here, here and here). The EU Enforcement Directive (Article 3.2) expressly mandates that measures such as injunctions be fair, equitable and proportionate, and be applied so as to avoid barriers to legitimate trade and safeguards against abuse. Of course, this does not mean that injunctions are not prevalent in European patent litigation, though the proportionality requirement can shape both the conditions under which they are granted and the manner of their application.

As far as the US is concerned, this jurisdiction moved away in 2006 from automatic injunctions with the Supreme Court’s eBay v. MercExchange decision, which replaced a quasi-automatic practice with a four-factor test that requires courts to consider irreparable harm, adequacy of damages, the balance of hardships and the public interest. This has made it more difficult, in particular for non-practicing entities (which abound in SEPs litigations around the world), to use injunctions as a routine means of pressure where monetary compensation would suffice. This is also true of UK, Canadian, Chinese, and Indian scenarios, amongst others.

These developments converge on a common understanding: while injunctions remain the typical remedy when infringement is established, they are no longer to be granted as a mechanical or automatic entitlement. Instead, courts should conduct a substantive assessment of proportionality and necessity, ensuring that injunctive relief is not reflexively issued merely upon proof of infringement. By constraining Colombian judges from applying necessity and proportionality assessments, the CAN Secretariat’s opinion risks placing Andean law at odds with practice across major patent jurisdictions and turning the region into an outlier that prioritises formal uniformity over substantive justice and economic rationality.

That is why we believe Colombia should reconcile their patent enforcement frameworks with these internationally recognised principles of proportionality to ensure coherent, fair patent litigation standards.