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unreasonable, that recourse may be had to the preparatory work of the treaty and the
circumstances of its conclusion. 84
Paris Convention
7-57
The Paris Convention, originally dating from 20 March 1883, contains inter alia the principles
of national treatment, priority and minimum standards, which initiated a harmonisation of
industrial property law. However, as the EPC is a special agreement in terms of art.19 Paris
Convention, the principles laid down in the Paris Convention already follow from the EPC, which
adopted them for European patents. As the EPC takes precedence over the Paris Convention
according to art.24(1) UPCA, the principles to be applied will primarily follow from the EPC.
Many of the provisions of the 1967 revision to the Paris Convention 85 are incorporated by
reference into the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights
(the TRIPS Agreement) 86 and therefore to the extent that the CJEU has jurisdiction to interpret
the patent provisions of the TRIPS Agreement, the CJEU will have jurisdiction to interpret the
patent provisions of the Paris Convention. 87
Patent Cooperation Treaty
7-58
The Patent Cooperation Treaty (PCT) was signed in Washington on 19 June 1970. It concerns
formal patent law and mainly relates to the procedure for international applications.
Notably, the EPC also constitutes a regional patent treaty in terms of art.45(1) PCT.
Accordingly, European patents may be granted on the basis of an international application,
filed under the PCT. Again, the EPC precedes the PCT as an international agreement according
to art.24(1) UPCA, so that the formal procedure follows from the EPC. In case of ambiguities,
the Court may however resort to the PCT for interpretation purposes. To date, this Convention
has most notably been applied in the context of European patents when determining if the
applicant for the European patent is the person legally entitled to be the applicant. 88
The TRIPS Agreement
7-59
Regarding the enforcement of intellectual property rights, the most important international
agreement is the TRIPS Agreement which was signed in Marrakech on 15 April 1994 and to
which the EU, as well as its Member States, is a party. The TRIPS Agreement defines patents and
patentability, introduces a non-discrimination principle and establishes the scope of protection
of a patent by providing for specific exceptions. Although its provisions are not directly
applicable in Member States, this Treaty has often been referred to as constituting the basis for
the Enforcement Directive. Furthermore, most of the relevant provisions have already been
implemented in the EPC as well as the respective national patent laws of the contracting states.
7-60
In Daiichi Sankyo, 89 the CJEU found that, to the extent that the patent provisions of the TRIPS
Agreement fall under EU exclusive competence by virtue of art.207 TFEU, 90 they generate EU
law effects and hence the CJEU has jurisdiction to interpret them. The CJEU held that only those
rules of the Union with “a specific link to international trade are capable of falling within the
84
85
86
87
88
89
90
art.32 Vienna Convention.
arts 1 to 12 and 19 Paris Convention (1967).
art.2(1) TRIPS Agreement.
See paragraphs 7-59 to 7-61.
An issue which the EPO Enlarged Board of Appeal has been requested to review in pending case G 1 & 2/22
“Entitlement to Priority”.
Daiichi Sankyo Co. Ltd and Sanofi-Aventis Deutschland GmbH v DEMO Anonimos Viomikhaniki kai Emporiki Etairia Farmakon (C414/11) ECLI:EU:C:2013:520.
art.207 TFEU provides that the EU holds exclusive competence over commercial aspects of intellectual property.
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A Guide to the UPC and the UP 116
