LISBON LOCAL DIVISION Law and Practice Contributed by: Joana Piriquito Santos, Beatriz Lima and Sara Nazaré, NLP
whether they should be in writing or given orally, time for rebuttal, court powers, option of resort - ing to technological means, and witness partici - pation. The two final oral hearings were organised in the same way. The judge rapporteur (the president on both occasions) provided for a brief summa - ry of the dispute ‒ following which, both parties pleaded their case for an hour and at the end the court (all the judges individually) directed spe - cific questions to each of the parties. The parties were given some time to consider these ques - tions and then responded (and rebutted) orally. Where no infringement nor validity issues were at stake, the hearing lasted a morning. When non-infringement and invalidity arguments were raised, the hearing continued in the afternoon. 4.2 Key Procedural Issues A number of leading cases involving key pro - cedural matters have taken place in Portugal. The important procedural issues arising in those cases are discussed in further detail here. Portugal is Ericsson v ASUSTeK/Arvato/ Digital River As mentioned in 3.2 Leading Cases , this case involved a request for provisional measures. • At the beginning of the proceedings, the parties discussed the applicant’s compliance with Rule 13.1 (h) of the RoP – ie, the need to disclose information about any prior or ending proceedings relating to the patent concerned. The court considered that such an issue could be responded to in the reply to the opposition, but given the overall timeline of the proceedings and considering that the oral hearing date had been set, the applicant was invited to comment on the matter separately
and within a specific shorter time period. The court ultimately concluded that Rule 13.1 (h) of the RoP requires the indication of the actions before other courts or authorities related to the patent in question. In accordance with Rules 16.2, 16.4 and 208 of the RoP, the registry should invite the claim - ant to correct the formal deficiencies observed (whether any information at all is provided) ‒ although there is no legal impediment preventing the applicant from making such correction on its own initiative. That being said, there is also no legal impediment for the other party to verify the accuracy or the completeness of the information provided, enabling the court to take a position on the missing information. The court further concluded that there is no legal basis for the applicant to be ordered to provide copies of the relevant prior art, pleadings and expert reports and that imposing this could rep - resent an imbalance in the parties’ interests. It is also particularly incompatible with the urgency of preliminary injunctions. • The request for provisional measures was denied on the basis of the “no unreasonable delay” requirement (considered under “urgen - cy”). Although the court ultimately assessed the patent’s likelihood of being valid and infringed, the requested provisional measures were rejected because the court found that it had not been provided with sufficient tempo - ral elements enabling the court to assess the applicant’s diligence in initiating proceedings. The matter was discussed in length in the briefs and at the oral hearing, with the court having put specific questions to the appli - cant’s side about when they became aware of the potential infringement. Ultimately, the court’s reasoning was based on the “silence
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