Article 27 of the TRIPs Agreement concerns patentability, not the protection conferred
18-09-2013 Print this page
Article 27 of the TRIPs Agreement falls within the field of the common commercial policy.
"60. Consequently, as the Commission observes, to regard the rules on patentable subject-matter in Article 27 of the TRIPs Agreement as falling within the field of the common commercial policy rather than the field of the internal market correctly reflects the fact that the context of those rules is the liberalisation of international trade, not the harmonisation of the laws of the Member States of the European Union.
57.That argument does not take sufficient account of the objective of the TRIPs Agreement in general and Part II of the agreement in particular.
58.The primary objective of the TRIPs Agreement is to strengthen and harmonise the protection of intellectual property on a worldwide scale (Case C-89/99 Schieving-Nijstad and Others [2001] ECR I-5851, paragraph 36). As follows from its preamble, the TRIPs Agreement has the objective of reducing distortions of international trade by ensuring, in the territory of each member of the WTO, the effective and adequate protection of intellectual property rights. Part II of the agreement contributes to attaining that objective by setting out, for each of the principal categories of intellectual property rights, rules which must be applied by every member of the WTO.
59. Admittedly, it remains altogether open to the European Union, after the entry into force of the FEU Treaty, to legislate on the subject of intellectual property rights by virtue of competence relating to the field of the internal market. However, acts adopted on that basis and intended to have validity specifically for the European Union will have to comply with the rules concerning the availability, scope and use of intellectual property rights in the TRIPs Agreement, as those rules are still, as previously, intended to standardise certain rules on the subject at world level and thereby to facilitate international trade."
Article 27 of the TRIPs Agreement concerns patentability, not the protection conferred.
"69. [...] that Article 27 of the TRIPs Agreement concerns patentability, not the protection conferred by a patent. The question of the protection conferred by a patent is governed in particular by Article 28 of the agreement, ‘Rights Conferred’, Article 30, ‘Exceptions to Rights Conferred’, and Article 33, ‘Term of Protection’."
Pharmaceutical process patent does not, by reason of rules set out in Articles 27 and 70 TRIPs, have to be regarded from the entry into force of the agreement as covering the invention of pharmaceutical product
"83. the answer to Question 3 is that a patent obtained following an application claiming the invention both of the process of manufacture of a pharmaceutical product and of the pharmaceutical product as such, but granted solely in relation to the process of manufacture, does not, by reason of the rules set out in Articles 27 and 70 of the TRIPs Agreement, have to be regarded from the entry into force of that agreement as covering the invention of that pharmaceutical product."
IPPT20130718, CJEU, Daiichi Sankyo and Sanofi Aventis v DEMO
C-414/11 - ECLI:EU:C:2013:520
