For the half-year to 31 December 2014, the IPKat's regular team is supplemented by contributions from guest bloggers Rebecca Gulbul, Lucas Michels and Marie-Andrée Weiss.

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Monday, 22 January 2007

ECJ treats of the week


ECJ treats of the week

Right: interpreting TRIPs Article 33 - is it just a piece of cake?

Tomorrow morning Advocate General Ruiz-Jarabo Colomer treats the Grand Chamber of the ECJ to the benefit of his Opinion in a case that the IPKat didn't see coming: Case C-431/05 Merck Genéricos Produtos Farmacêuticos. This case, on a reference from what the IPKat thinks is probably Portugal since the language of the case is Portuguese, asks just two short questions:

"Does the Court of Justice of the European Communities have jurisdiction to interpret Article 33 of the TRIPs Agreement?

In the event of an affirmative answer to the first question, must national courts apply that Article, on their own initiative or at the request of a party, in proceedings pending before them?".
Article 33 of TRIPs reads as follows:
"Term of Protection

The term of protection available [for a patent] shall not end before the expiration of a period of twenty years counted from the filing date".
The IPKat's curiosity is stimulated by this. The provisions doesn't look like the sort of thing to give a judge a headache, so he suspects something sinister lurking beneath the surface. Indeed, echoes Merpel, it must be something quite Merck-y ...

Reminder: on Thursday 25 January, as previously noted on this blog (see A Tale of Three Thursdays, here), judgment is expected in Cases C-48/05 Adam Opel and C-321/03 Dyson.

1 comment:

Tibor Gold said...

Very convoluted legal reasoning trying decide between clearly divergent ECJ jurisprudence on direct effect of TRIPS. The issue here was whether when Portugal and the EU acceded to TRIPs the previous 15-year term of patents was automatically extended to 20 years, as req'd by Art 33 TRIPs. The A-G opines that TRIPs is NOT of direct effect and specific national legislation is required to implement its terms.
As a consequence a Portuguese generic pharma co 'got away with it', because it started making its copy drug after the 15-yr term of the patent protecting the drug had expired (but before 20 years were up) and so cannot be sued.
Tibor

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