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Monday, 10 October 2011

Daiichi TRIPS reference: more time to comment!

On Friday the IPKat told readers that there was a new case heading for a preliminary ruling of the Court of Justice of the European Union. It's Case C-414/11 Daiichi Sankyo Company Limited, Sanofi-Aventis Deutschland GmbH v DEMO Anonimos Viomikhaniki kai Emporiki Etairia Farmakon and it comes all the way from the Polimeles Protodikio Athinon (Greece). It's about the TRIPS Agreement -- not a topic that we often get the chance to ask the Court of Justice to rule on. To refresh readers' memories, the questions asked of the Court of Justice are as follows:
"1. Does Article 27 of the TRIPS Agreement setting out the framework for patent protection fall within a field for which the Member States continue to have primary competence and, if so, can the Member States themselves accord direct effect to that provision, and can the national court apply it directly subject to the requirements laid down by national law? 
2. Under Article 27 of the TRIPS Agreement are chemical and pharmaceutical products patentable subject matter provided that they satisfy the requirements for the grant of patents and, if so, what is the scope of their protection? 
3. Under Articles 27 and 70 of the TRIPS Agreement, do patents covered by the reservation in Article 167(2) of the 1973 Munich Convention which were granted before 7 February 1992, that is to say, before the above agreement entered into force, and concerned the invention of pharmaceutical products, but which, because of the aforementioned reservation, were granted solely to protect their production process, fall within the protection for all patents pursuant to the provisions of the TRIPS Agreement and, if so, what is the extent and content of that protection, that is to say, have the pharmaceutical products themselves also been protected since the above agreement entered into force or does protection continue to apply to their production process only or must a distinction be made based on the content of the application for grant of a patent, that is to say, as to whether, by describing the invention and the relevant claims, protection was sought at the outset for the product or the production process or both?"
Readers were given until tomorrow to respond to the UK government whether it needs to make representations to the Court of Justice in this reference, which sparked off the following response from the Kat:
"Yes, we continue to get stupidly and unrealistically short periods of time in which to respond to questions of great complexity and sometimes even of great importance. The IPKat will buy a full three-course lunch, with wine, for whichever civil servant or politician manages to get the Intellectual Property Office and the Treasury Solicitor to cooperate on devising a more sensible that gives at least 10 working days in which interested parties can respond".
The underlying problem has not yet been solved, but the Kat is overjoyed to learn that readers have now been given two more days in which to respond, since a new deadline has been set for 13 October 2011.  Thank you so much, nice folk at the IPO, for letting us know.  So, if you want to advise the UK government, email policy@ipo.gsi.gov.uk before close of play this coming Thursday, 13 October.

Merpel reminds readers growlingly that there are still further issues to resolve.  One is to find out if our submissions are ever taken into account; a second is to find out what submissions the UK government is making on our behalf. But let's fight one battle at a time -- and give credit where due.


Finally: does anyone know anything about the facts and circumstances relating to this case? It's not easy forming an opinion on a series of abstract questions without having some clue as to their context. The dispute plainly isn't about cat-food -- but what is it about?

3 comments:

Inakin said...

I have no idea about facts and circumstances to this case but it appears to me very similar to what has been going on in Spain within the recent years about interpretation of arts. 27 & 70 TRIPS, art 69 EPC and national legislation on scope of protection of pharmaceutical goods, conflict that has reached Supreme Court. See a comentary http://kluwerpatentblog.com/2011/07/14/supreme-court-hands-down-landmark-judgment-on-doctrine-of-equivalents-and-trips/?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+KluwerPatentBlogFull+(Kluwer+Patent+Blog+-+Latest+Entries)

Tim Roberts said...

CIPA's Life Sciences Committee is meeting on Wednesday morning, and expects to discuss this. CIPA members with views are invited to send them in to arrive by 10.30 am on 12 October (mail[at]cipa.org.uk). Thoughts from non-members are likewise welcome.

Tom said...

The decision is in and Art. 27 TRIPS is common policy i.e. exclusive competence of the EU (and yes, also the EUCJ). Have fun!

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