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PORTUGAL – New IP Code and change to pharmaceutical patent disputes Law

After months of intense debate, the new IP Code and a change to the Law regulating pharmaceutical patent disputes against generic medicines was published yesterday in the Official Gazette. We will shortly be sending you a notice on the new IP Code main features. In what patent disputes are concerned, we highlight the following changes.

What changes:

(i) Pharmaceutical patent disputes no longer subject to mandatory arbitration

(ii) Arbitral Tribunal to assess patent invalidity arguments inter partes

(i) Pharmaceutical patent disputes no longer subject to mandatory arbitration

Arbitration only applies if the patentee and the Marketing Authorisation (MA) applicant agree to it. Should no agreement be reached, the patentee should file enforcement proceedings before the IP Court, which now also becomes competent to deal with pharmaceutical patent disputes against generic medicines.

The patentee may, however, choose to start enforcement proceedings before the IP Court without first trying to have the proceedings handled by an Arbitral Tribunal.

(ii) Arbitral Tribunal to assess patent invalidity arguments inter partes

It now becomes possible to raise patent invalidity arguments within arbitration proceedings with inter partes effect only. The Arbitral Tribunal decision on the patent validity will not be erga omnes.

What does not change:

The 30-day deadline for the patentee to initiate the patent enforcement proceedings counted from the MA publication has not been revoked.

These amendments will enter into force on January 9, 2019.


11-12-2018  
 

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