PORTUGAL Trends and Developments Contributed by: António Andrade, Manuel Durães Rocha and Ana Panão, Abreu Advogados
Litigating Patents in Portugal in 2025 The past couple of years have been interesting in terms of patent litigation in Portugal, even though the number of judicial cases has been decreasing since 2021. The novelty, however, was the filing of the first – and, so far, unique – case at the local division of the Unified Patent Court (UPC) in Lisbon. This is in stark contrast to 2012–17 – during which, hundreds of arbitral actions were filed and judged. In fact, since Law 62/2011 was amended by the current Industrial Property Code (2018), the number of patent cases has significantly decreased. The reason is quite simple. Law 62/2011 estab- lished a mandatory arbitration system whereby, in disputes that involved holders of pharma- ceutical patents seeking to enforce their rights against generic drugs, the publication of a mar- keting authorisation application for a generic medicine triggered a legal term of 30 days for the patent holder to file an arbitration proceed- ing. This caused a significant patent litigation scenario in Portugal until the end of 2017. The amendment of Law 62/2011 saw the estab- lishment of a voluntary arbitration system that replaced the mandatory one. Since January 2018, the publication of a marketing authorisa- tion application for a generic medicine has trig- gered a legal term of 30 days in which the patent holder may file a voluntary arbitration proceed- ing – which implies the agreement of the parties to submit the dispute before an arbitral tribunal – or, if there is no agreement on that question, the patent holder must file a legal action before the Intellectual Property Court. Considering that there is usually no agreement between the parties to take the arbitration route, the patent litigation cases were filed in the aforementioned
estate court and this actually led to a decrease in the patent litigation cases in Portugal concerning pharmaceutical and biotech patents and generic medicines. The law change has also meant that a consid- erable number of agreements between pharma originator companies (ie, patent holders) and generic companies have resulted in the avoid- ance of costs and sluggish legal proceedings. As regards other patents (eg, mechanical patents), some important cases are pending – notably, regarding medical devices. Patent cases Although the number of patent litigation cases has not been high, there have been a couple of interesting proceedings regarding the enforce- ment of pharma and biotech patents, as well as some cases related to patented medical devic- es. Specifically, the authors have represented pharmaceutical companies in legal proceedings where the discussion of classic matters such as literal infringement, infringement by equiva- lence, novelty, inventiveness, and sufficiency took place. The Intellectual Property Court has a tendency to assess sufficiency in a much more in-depth way, contrary to what happened in the past few years. Judgments on infringement by equiva- lence are also growing, with a much better tech- nical approach. The Intellectual Property Court is also increasing the use of expert evidence in the assessment of infringement and validity – normally at the request of the parties or ordered by the court on an ex officio basis. Patented medical devices In cases involving patented medical devices, discussions concerning the inventiveness of the enforced patents basically focus on the prob-
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