PORTUGAL Trends and Developments Contributed by: António Andrade, Manuel Durães Rocha and Ana Panão, Abreu Advogados
the first grant of an SPC in the EU under the noted circumstances. Increase in IT and trade secrets litigation Portugal is witnessing an increase in litigation regarding patents in the field of telecommuni- cations and IT. Furthermore, the so-called com- puter-implemented inventions are also subject to a large number of litigation cases, similarly involving copyright issues. Software in general is not patentable in Por- tugal. However, if the software has a technical contribution that is novel and inventive and has industrial applicability, it can be protected by a patent. The computer-implemented inventions are therefore software patents and this area is being quite well developed in Portugal – notably, through a large number of start-ups. Following this significant development, it is inev- itable that disputes concerning software patents are on the rise. Trade secrets is another area in which there are a number of legal disputes and the authors believe that these are equally set to increase. Portuguese division of Unified Patent Court in Lisbon The local division of the UPC in Lisbon is com- posed of one Portuguese judge and two non- Portuguese judges, so as to maintain consistent jurisprudence between the various local divi- sions of the UPC, regardless of their geographi- cal location. Local UPC divisions will have juris- diction to settle – among other matters – patent infringement actions, cease-and-desist issues, and damages actions. In addition, some matters of invalidity or non-violation of a patent may also fall within the jurisdiction of these local divisions.
There are certain advantages regarding patent litigation in the Portuguese local division. • First, and despite the fact that local law is only applicable in specific situations, the local division’s Portuguese judge and the local lawyers may transpose the cross-examination process used in the hearing of experts and witnesses in trials into UPC proceedings – thereby helping to shape jurisprudence. As a matter of fact, the Portuguese procedural system uses cross-examination and it may be the case that the long-standing experience of the Portuguese UPC judge and lawyers with such system is transposed into UPC pro- ceedings. (The use of cross-examination can be seen as best practice in court hearings.) • Second, the costs of the proceedings (both court and legal fees) are lower than in several other EU countries. Portuguese legal fees are considerably less expensive compared to those in other legal markets. This is some- thing that companies really should evaluate more closely. Expectations for the Lisbon division of the UPC are high and demanding and the court received its first case in June 2024. The case concerns a preliminary injunction between Ericsson and Asus over a telecommunications patent – although it is not a standard essential patent case. The case was decided in four months, which represents a great improvement in com- parison with the timeframe for national cases. Both parties were represented by international teams that included local law firms such as Abreu Advogados. The decision held the valid- ity and the infringement of the patent asserted, as well as the balance of rights in favour of the patentee, but the case was dismissed on the ground of lack of urgency.
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