Patent Litigation in Portugal: An Overview

Patent litigation in Portugal takes place within a dual framework reflecting both national and European systems. This dual-track system blends centralised European enforcement with a specialised national forum.

Disputes involving European patents (EPs) that have not been opted out, or unitary patents, are heard by the Lisbon Local Division of the Unified Patent Court (UPC), which opened on 1 June 2023. Meanwhile, national Portuguese patents and European patents that are opted out fall under the jurisdiction of the Intellectual Property Court (the “IP Court”) in Lisbon.

Historical reforms have reshaped pharmaceutical patent litigation. Under the previous Law 62/2011 of 12 December, holders of pharmaceutical patents could trigger mandatory arbitration when a generic drug application was published. After the 2018 amendment, mandatory arbitration was replaced with voluntary arbitration. Hence, most patent holders reverted to the national courts. The result has been a significant drop in patent cases since 2021, with fewer mandatory proceedings and a modest rise in private settlements.

Though overall caseloads remain moderate, litigation continues, especially in the pharma, biotech and medical devices space. The IP Court has adopted a deeper, more technical approach to key issues such as sufficiency, infringement by equivalence, novelty, inventive step and claim interpretation. Expert evidence, whether party-appointed or court-appointed, plays a central role in shaping outcomes and reflects the evolving sophistication of judicial analysis.

Portugal’s Intellectual Property Court

For opted‑out EPs and national patents, disputes fall to the Intellectual Property Court (Lisbon), with appeals to the Lisbon Court of Appeal and, in qualifying cases, to the Supreme Court.

Typical timelines for infringement proceedings are around 18 months to reach a first-instance judgment and about 12 months for an appeal, though this can vary with case complexity and procedural developments.

Preliminary injunctions generally take 8 to 18 months at first instance, which is longer than in some common law jurisdictions. This makes effective case management, demonstrating urgency, and preparing strong technical evidence critical for success.

Evidentiary expectations and the role of experts

Portuguese courts take a detailed approach to both validity and infringement when deciding preliminary injunctions, and these decisions are rarely overturned later. This makes early technical preparation essential. Patentees should present claim charts, experimental data and evidence of market impact, while defendants should provide independent technical analyses and a credible plan for non-infringement or invalidity. The practice reflects a preference for thorough interim assessments that minimise the risk of reversing positions during the main proceedings.

A notable domestic trend is stricter judicial scrutiny of technical experts. Some judges have started treating technical experts as specialists rather than ordinary witnesses, which introduces procedural differences under the Portuguese Civil Procedure Code. Experts are expected to provide independent, methodologically rigorous opinions aligned with the technical record, and their reports often follow stricter formal requirements than standard witness statements.

Moreover, in complex cases the judges of the IP Court may appoint technical advisers, adding an additional layer of technical scrutiny. Although the IP Court is legally prescribed as a specialised court, the judges are not technical by default, and they generally lack scientific training. These advisers act as neutral assessors, helping the three judges of the IP Court navigate highly specialised subject matter. Their involvement means parties must choose experts with strong credentials and transparent methodologies, as their role increasingly resembles that of a quasi-expert assessor rather than a simple witness. Anticipating the perspective of a court-appointed adviser is now a key strategic consideration.

Finally, Portuguese civil procedure expects the parties to file their documentary and expert evidence with the pleadings, as wide common‑law‑style discovery is not available. Disclosure is narrowly focused and ordered by the judge, granted only upon specific and proportionate requests that clearly identify the document sought and the fact it is intended to prove. As the system does not provide for protective letters, defendants must be ready to respond swiftly to any interim relief sought.

Sectoral landscape and types of rights litigated

In the pharmaceutical industry, regulatory milestones, such as the publication of marketing authorisation applications, continue to influence litigation strategies, even though the mandatory arbitration regime that used to be in place was abolished years ago. Following that change, case volumes declined as parties shifted back to state courts and began exploring alternative settlement mechanisms. Nevertheless, significant disputes persist in the pharmaceutical, biotechnology and medical device sectors, reflecting Portugal’s strong industrial base and research capabilities.

Beyond standard national patents and opted‑out European patents, the IP Court also hears disputes involving utility models, which protect incremental innovations and are often litigated in mechanical and engineering sectors.

In the life sciences sector, Supplementary Protection Certificates (SPCs), extend patent protection for medicinal and plant protection products. Paediatric extensions under Regulation (EC) No 1901/2006 of the European Parliament and of the Council of 12 December 2006 also frequently arise in high value disputes. These rights are strategically important because they can prolong market exclusivity beyond the basic patent term, positioning them at the centre of clashes between innovators and generics. Patent-adjacent rights, such as process patents, second medical use claims, and, increasingly, software-implemented inventions in the IT and telecoms fields, are also included in the roster, reflecting Portugal’s expanding technological and industrial landscape.

Each category introduces distinct evidentiary and regulatory complexities, necessitating tailored technical and legal approaches to effectively navigate litigation.

Substantive legal analysis and remedies

Courts interpret patent claims by looking at the wording of the claims together with the description and what a skilled person in the field would normally know. They consider both the literal meaning of the claims and whether an accused product or process is equivalent to what is described in the patent.

The increasing use of court-appointed technical advisers has helped judges carry out this analysis with more technical detail, including evaluating whether something works in essentially the same way as the invention. Because of this, parties should define “common general knowledge” precisely and avoid vague or overly broad statements.

When experiments or technical tests are submitted, judges and advisers examine them closely. They look at the testing methods, controls used, calibration, and underlying data. Experiments that cannot be repeated or are not transparent tend to carry less weight. Whenever possible, parties should include independent confirmations or repeated tests.

In chemical and biological cases, it is important to explain the strength and relevance of the data, especially the difference between results obtained in a laboratory and those obtained in real world conditions. This should be connected to the potential market impact and urgency of the case.

As Portugal’s technology sector grows, the IP Court is also seeing more cases involving computer-implemented inventions. These can be harder to assess because patentability and infringement often depend on showing that the invention has a genuine technical effect. In many cases, the key technical features are hidden inside software, cloud systems, or devices. This means parties may rely more heavily on reverse engineering, technical protocols, and expert analysis to show whether a system uses the patented invention.

The IP Court now deals with a wide range of technical patent disputes. While pharmaceutical and biotechnology cases still represent a large share of its work, partly due to Portugal’s past arbitration system and the importance of marketing authorisation timing, the IP Court increasingly handles disputes involving medical devices, which continue to generate significant litigation as these technologies become more advanced.

Outside the life sciences, the Court also regularly hears cases involving mechanical and engineering patents, often linked to Portuguese industry and sometimes overlapping with utility model protection.

The IP Court can issue both interim and final injunctions, and it may also order infringing products to be withdrawn from the market or destroyed. During the main proceedings, the IP Court can require parties to disclose specific information.

Damages may be calculated based on the profits the rights‑holder lost or on a reasonable royalty, supported by market or licensing evidence. In preliminary‑injunction cases, legal costs are generally recoverable only at the end of the main action, and only if the applicant ultimately succeeds.

Role of the Unified Patent Court (UPC)

Since its launch on 1 June 2023, the UPC has reshaped European patent enforcement. In its first two years of activity, the UPC has seen a steady increase in filings across its local divisions, signalling strong uptake by rights-holders. The court has also established an active practice around preliminary injunctions (PIs) and the principle of proportionality, which are now central to its jurisprudence.

One of the most transformative aspects of the UPC is its ability to grant pan-European relief. Unlike national courts, the UPC can issue decisions that apply across all participating EU member states, dramatically increasing the strategic leverage of litigation. This feature reduces the need for parallel proceedings in multiple jurisdictions and enhances enforcement efficiency for patent holders.

Moreover, the UPC has adopted an assertive stance on jurisdiction, as illustrated by the landmark Fujifilm v Kodak case before the Mannheim Local Division. In this dispute, the court confirmed its competence to adjudicate infringement claims concerning the UK designation of a European patent, even though the UK is not a UPC member state, relying on Brussels I Recast and recent CJEU guidance in BSH Hausgeräte (Electrolux). Crucially, Mannheim granted a permanent injunction and ordered an accounting for damages covering the UK part of the patent, while clarifying that validity assessments for non-UPC states remain inter partes and do not affect national registers.

This bold interpretation demonstrates the UPC’s willingness to extend its practical reach beyond its formal territorial limits, creating significant leverage for patentees and reshaping litigation strategy. By enabling remedies that impact non-participating jurisdictions, the UPC strengthens its position as a central forum for European patent disputes, with profound implications for forum shopping, cross-border enforcement, and the balance of power between rights-holders and alleged infringers.

UPC infringement litigation

Two years in, the UPC has attracted more cases than many anticipated. From June 2023 to June 2025, the Court of First Instance recorded 946 cases, a balance of infringement suits and revocation actions, with counterclaims for revocation featuring heavily in infringement-driven disputes. Standalone revocations remain relatively uncommon.

This trend reflects users’ preference for resolving infringement and validity issues together under the UPC framework because it offers efficiency, consistency and strategic clarity. Under the previous fragmented system, these issues were often litigated separately in different national courts, leading to duplicated costs, prolonged timelines, and conflicting judgments. The UPC’s centralised approach allows parties to address both aspects in a single proceeding, reducing litigation expenses and accelerating outcomes. It also provides legal certainty by delivering one coherent decision with unitary effect across participating EU states, which is particularly valuable for businesses operating in multiple jurisdictions. By consolidating disputes, the UPC minimises forum shopping, streamlines enforcement strategies and aligns with a broader global trend toward integrated dispute resolution.

German local divisions continue to attract roughly 75% of infringement filings, while Paris, The Hague, and Milan also remain active hubs. English now dominates as the language of proceedings, accounting for about 55% of cases, which facilitates pan-European co-ordination for multinational parties. These patterns in venue and language, reflected in court statistics and specialist reporting, are shaping forum-shopping behaviour and influencing staffing strategies as litigants seek centralised EU-wide relief.

The UPC’s default is non‑bifurcation. This means infringement and validity travel together unless exceptional circumstances justify splitting. Early orders show judicial caution in relation to bifurcation, aiming to avoid inconsistent records. For patentees, this reduces tactical “injunction first, validity later” plays familiar from some national systems; for defendants, it increases the incentive to prepare robust invalidity counterclaims from the outset.

To establish infringement before the UPC, the claimant must satisfy substantive requirements under the Unified Patent Court Agreement (UPCA), primarily Articles 25 and 26. These provisions prohibit, without consent, acts such as making, offering, placing on the market, using, importing, or storing a patented product, as well as using or offering a patented process and marketing products obtained directly from such processes. Indirect infringement occurs when a party supplies means relating to an essential element of the invention, knowing or having reason to know they are intended for infringement. Claims are interpreted from the perspective of a skilled person, considering the description and drawings. The burden of proof lies with the claimant, who must provide prima facie evidence of infringement and validity, supported by technical documentation and, where necessary, disclosure or inspection orders under UPC procedural rules. Defendants typically respond with invalidity counterclaims and defences like exhaustion or prior use rights, making robust preparation essential for both sides.

Provisional measures at the UPC

UPC preliminary injunctions can reset negotiations and market access across participating states in a single stroke. From mid‑2023 through 2025, divisions handled dozens of preliminary injunction (PI) applications and related orders, such as those preserving evidence or ordering inspections and confidentiality arrangements, underscoring how interim relief can be outcome determinative in time‑sensitive industries such as pharma, medical devices and consumer electronics.

Applicants must generally demonstrate a strong likelihood of infringement, credible validity of the patent, urgency or risk of irreparable harm, and that the requested measure is proportionate. UPC case law has clarified proportionality by weighing patent rights against potential supply chain disruptions, public-interest factors such as patient or consumer needs, and the availability of alternative solutions.

In Merz v Viatris, the court emphasised the critical importance of acting swiftly. Merz’s request for a preliminary injunction was denied because it was filed too late, even though the SPC was in force. Market entry by Viatris had become foreseeable once pricing and reimbursement were granted. The court held that urgency arises not from actual infringement, but as soon as entry is imminent, and warned patentees to remain vigilant and act promptly to preserve interim relief.

One procedural innovation reshaping the preliminary injunction landscape is the protective letter, which is a pre-emptive filing by a potential defendant that sets out arguments on non-infringement, invalidity and proportionality before any ex parte preliminary injunction request is made. This practice has grown rapidly because it can limit the circumstances in which ex parte orders are granted and promotes early inter partes engagement. To use it effectively, parties must monitor potential threats and file protective letters in the divisions most likely to receive the preliminary injunction application.

UPC divisions have authorised targeted evidence preservation and inspections, often coupled with confidentiality clubs and staged disclosure to safeguard trade secrets. The approach is pragmatic, supporting fact‑finding while guarding against fishing expeditions, consistent with the court’s emphasis on procedural efficiency and transparency in case management.

For patentees, preliminary injunctions success hinges on a strong validity record, granular infringement analysis and a credible proportionality narrative. For defendants, protective letters, documented work-arounds and undertakings that make tailored relief preferable to broad injunctions can be decisive.

The UPC’s “long‑arm” jurisdiction

Within participating member states, UPC orders have EU‑wide effect where the patent’s territorial scope allows it. A single injunction can stop sales in multiple countries, which is a key reason why the UPC is strategically significant. Early cases show that courts will grant broad relief when the legal requirements are met, so companies must plan product launches and contingency measures with this risk in mind.

In July 2025, the Fujifilm v Kodak decision sparked debate about the UPC’s extraterritorial reach after the court asserted jurisdiction to rule on the UK designation of a European patent, even though the UK is outside the UPC system. While appellate clarification is still expected, the key takeaway is to proceed with caution. Therefore, parties should not assume the UPC will adopt a narrow interpretation of its jurisdiction when the legal framework and the facts support a broader interpretation. This approach aligns with the reasoning in the BSH Hausgeräte (Electrolux) case before the CJEU, which confirmed that UPC divisions may assess validity and infringement for non-UPC designations on an inter partes basis without affecting national registers. Together, these rulings signal that cross-border enforcement under the UPC can extend beyond participating states, making it essential for litigants to monitor appeals and future decisions to understand the potential scope of the UPC’s reach.

Defendants should plan product launches carefully, maintain backup supply chains, and document design-arounds to support proportionality arguments if faced with a pan-EU injunction. Patentees, meanwhile, should co-ordinate UPC actions with national litigation in non-participating states and align European Patent Organisation (EPO) opposition or limitation strategies to maintain a consistent validity narrative across Europe.

The Lisbon Local Division

The Lisbon Local Division has been established within the UPC network, benefiting from cross‑division co-ordination and increased judicial capacity. Although the earliest waves of filings were concentrated in Germany, Portugal features in many parties’ venue assessments for Iberia‑centred disputes, Portugal‑based operations, or English‑language proceedings.

Public practitioner notes in 2025 suggest further jurisdictional diversification and greater use of local divisions outside Germany and the Netherlands. Given Portugal’s strong footprint in pharma manufacturing and clinical research, as well as a growing medical devices sector, Lisbon is expected to attract disputes tied to Portuguese evidence, witnesses and inspections. Tech‑sector matters may also land in Lisbon, where distribution nodes or R&D facilities create a Portuguese nexus, especially when parties prefer English pleadings.

As of late 2025, the Lisbon Division has recorded a modest yet growing number of cases, including infringement actions and procedural applications, mainly in the pharmaceutical and telecom sectors. This trend signals Lisbon’s emerging role as a strategic forum for disputes with a clear Portuguese connection.

Interplay between the UPC and the Portuguese IP Court

During the seven‑year transitional period, actions involving traditional EPs (without unitary effect) may be brought either before the UPC or national courts, unless the patent has been opted out.

In 2024–2025, many litigants adopted a mixed forum strategy, opting out high‑value assets for national litigation while leaving others in the UPC for centralised leverage and EU‑wide remedies. This pluralism is stabilising as users become familiar with the UPC, its fee structure and its developing case law.

Where disputes run in parallel, consistency across the fora is vital. Inconsistent claim interpretations or technical theories can undermine credibility, especially given the Portuguese courts’ rigorous interim analysis and the UPC’s proportionality lens. It is important to align expert methodologies across systems and ensure EPO proceedings are factored into both timelines and the merits of arguments.

Litigation and Enforcement Strategies for Patentees and Defendants

For patentees, the first step is portfolio triage – ie, deciding which European patents to opt out of national litigation and which to keep under the UPC for centralised enforcement and pan-European remedies.

Venue selection is equally critical. Traditional divisions like Munich, Düsseldorf and Mannheim offer speed and technical expertise, while newer options such as The Hague, Milan, Paris, and Lisbon provide growing opportunities. Factors such as the language of proceedings, case management style and the location of evidence should guide the choice of forum.

Interim relief requires early preparation. Therefore, patentees should compile preliminary injunction materials covering validity, infringement, proportionality and security.

For defendants, proactive measures are key. Filing protective letters early in divisions likely to hear the case can reduce the risk of ex parte injunctions. Defendants should also develop proportionality strategies by documenting workarounds, alternative supply options and relevant public-interest considerations.

What to Watch in 2026

One major area to monitor is the evolution of the UPC Court of Appeal’s guidance on long-arm jurisdiction. These decisions will clarify how European patent bundles interact with patents in non-participating states and other non-EU designations. This will be critical for the development of enforcement strategies where cross-border implications remain uncertain.

Another important trend will be appellate rulings aimed at harmonising standards for urgency, validity thresholds and proportionality across UPC divisions. Greater consistency in these areas will improve predictability for both rights-holders and implementers, reducing forum-shopping risks and enabling more informed litigation planning.

As filings begin to spread beyond the busiest divisions, Lisbon is expected to issue early decisions on preliminary injunctions and claim construction approaches. These rulings will provide valuable data points for parties considering venue choices in Iberia-centric disputes, particularly where Portuguese manufacturing or logistics are involved.

Finally, attention should be paid to decisions that formalise the “technician” standard and set clearer expectations for expert methodology, independence and interaction with court-appointed advisers. These developments will influence how parties select and prepare experts, especially in jurisdictions such as Portugal where courts scrutinise technical rigour closely at both interim and trial stages.

Conclusion

The UPC is no longer a speculative forum. It is a strategic enforcement platform delivering consolidated infringement‑and‑validity adjudication, powerful interim measures, and pan‑EU outcomes. Its assertive jurisdictional posture has recalibrated the balance of risk and reward in European patent litigation.

Portugal complements that landscape through the Lisbon Local Division and a national IP Court known for predictable timelines and increasing technical sophistication, including the growing use of experts in the “technician” role.

For rights-holders and defendants alike, the lesson is integration. Parties should align UPC and Portuguese strategies, and co-ordinate EPO activity.