In December 2011 the Portuguese government enacted Decree Law 62/2011 which for the first time moved certain IP disputes, in particular patent disputes, in the pharmaceutical sector away from the Jurisdiction of the court and mandated that they are handled exclusively through arbitration. The reasoning underlying this controversial and unprecedented change is clearly political but has not been unambiguously expressed. It has been implied that it is linked to austerity measures in Portugal and indeed a Memorandum of Understanding on Specific Economic Policy Conditionality was concluded between Portugal and the Troika (European Commission, IMF and ECB) in May 2011. However, whilst the Memorandum of Understanding contained a section on the Portuguese Judicial system and mentioned arbitration within the context of alternative dispute resolution as a way to facilitate resolution of backlog cases and out of court settlement, there was no mention of its mandatory use, or any contemplation of its use in IP law, and certainly not in a specific sector. The only reference to IP in the Memorandum of Understanding was to make a speciality court on IP fully operational by Q1 2012. What is plain, however, is that the specific IP disputes selected by the Law to be handled in arbitration are the critical innovator vs generics disputes that effectively govern when a generic copycat medicine can legally be commercialised in Portugal.
Publications
Total Documents: 26
Presidents of the IP Federation
Preliminary injunctions alive and well – a view from Europe
Practical issues – selecting an expert and getting the best out of them
Privilege
- Attorney-client privilege in the UK Courts, especially for patent and trade mark attorneys
- Privilege in the proposed European and European Union Patents Court (EEUPC)
- Attorney-client privilege in European Commission competition law investigations
- Practical implications
Patent Quality
It is a basic requirement of a good patent system that granted patents should be of high quality: i.e., the patents can be presumed valid with a high degree of certainty. Those states and regional groups that provide for search and examination before grant should carry out these procedures to a high standard; while those states that do not examine before grant should be able to rely on the international system (PCT) and/or the work of examining offices to achieve quality.