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13 October 2011

Questions Referred to CJEU Concerning Interpretation of Provisions Contained Within the TRIPS Agreement - Daiichi Sankyo, Sanofi-Aventis Deutschland v DEMO Anonimos Viomikhaniki kai Emporiki Etairia Farmakon

Questions Referred to CJEU Concerning Interpretation of Provisions Contained Within the TRIPS Agreement - Daiichi Sankyo, Sanofi-Aventis Deutschland v DEMO Anonimos Viomikhaniki kai Emporiki Etairia Farmakon

Case C-414/11 – Daiichi Sankyo Company Limited, Sanofi-Aventis Deutschland GmbH v DEMO Anonimos Viomikhaniki kai Emporiki Etairia Farmakon

The captioned case relates to a reference for a preliminary ruling by the Court of Justice of the European Union (CJEU) (as sought by the Greek Court of First Instance) and concerns the proper interpretation of various provisions contained within the TRIPS Agreement and, more generally, the relationship between EU law, national law and EU Member States’ obligations under international treaties in the field of patents. The referred questions may be summarised as follows:

  1. Does Article 27 of the TRIPS Agreement (providing a framework for patent protection) fall within a field for which Member States have primary competence, and, if so, does the provision have direct effect and can a national court apply it directly subject to national law requirements?
  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 prior to 7 February 1992 (before the above agreement entered into force) and concerned the invention of pharmaceutical products, which because of the aforementioned reservation, were granted solely to protect production processes, 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? On that point, is protection afforded to the products themselves, or does protection continue to apply only to their production process, or can a distinction be made by virtue of the content of the application, that is to say, by describing the invention and the relevant claim, was protection sought at the outset for the product or the production process, or in the alternative, both?

Before the CJEU delivers judgment on the referred questions, the UK government has invited practitioners to make representations regarding the detailed issues at hand, in order to determine whether or not it should intervene in the proceedings. To that end, an extension to the previous deadline for submissions was agreed, requiring views to be communicated by the end of Thursday, 13 October 2011.

The results of the consultation period are eagerly awaited and the ultimate decision of the CJEU even more so.

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