A guide to the UPC and the UP - Flipbook - Page 162
provided that the invention is used exclusively for the needs of the vessel. Art.27(g) UPCA
exempts such use of patented inventions in the construction or operation of or in accessories
for aircraft, land vehicles, or other means of transport. The exceptions only apply where the
entry into the waters or territories of the Contracting Member States in which the patent has
effect is temporary or accidental. These terms are not defined in the UPCA but originate in
art.5ter Paris Convention for the Protection of Industrial Property. When considering the
national equivalent to art.27(f) UPCA, the UK Court of Appeal concluded that “temporary”
should be construed as “transient” or “for a limited period of time” and could not depend
on something as indefinite and imprecise as the frequency of entry. 41
10-55 There is a similar limitation in art.27(h) UPCA in relation to aircraft, which refers to a
limitation agreed in the Convention on International Civil Aviation of 7 December 1944. 42
Contracting states to this Convention have agreed, and this is now reflected in art.27(h) UPCA,
not to seize, detain, make any direct claims against, or otherwise interfere with, the owner or
operator of aircraft from other contracting states entering its territory or that transit across its
territory, with or without landings, based on the construction, mechanism, parts, accessories or
operation of the aircraft infringing any patent of the contracting state. This also applies to the
storage of spare parts and spare equipment for the aircraft and the right to use and install the
same in the repair of the aircraft. Note that this limitation does not cover sales or distribution of
such patented parts or equipment within the contracting state entered by the aircraft or
commercial exports from the contracting state.
10-56 The effect of art.27(h) UPCA is that patent infringement claims founded on the acts set out in
art.27 of the Chicago Convention can only be brought in relation to aircraft which are registered
in one of the Contracting Member States in which the patent has effect, i.e. aircraft registered in
other jurisdictions will benefit from a full defence to infringement.
Art.27(i) to (j) UPCA – Farmers’ Rights
10-57 Art.27(i) to (j) UPCA protect farmers’ ability to reuse their harvested seed for sowing (art.27(i))
and to breed livestock (art.27(j)) as part of their overall agricultural activities.
10-58 Art.27(i) UPCA allows a farmer to use the product of his harvest (i.e. harvested seeds)
for propagation or multiplication on the farmer’s own farm, provided the crop in question
was originally grown from seed sold to the farmer by, or with the consent of, the patent
proprietor for agricultural use. The exception provided by art.27(i) UPCA has its origins
in art.11(1) Directive 98/44/EC on the legal protection of biotechnological inventions
(the “Biotech Directive”). 43
10-59 The extent and conditions for use under art.27(i) UPCA are specified as corresponding to art.14
Regulation (EC) No 2100/94 on Community plant variety rights, which limits the right to certain
plant species and excludes hybrid and synthetic seed varieties. 44 Art.27(i) UPCA is therefore
limited to those plant varieties listed in art.14(2) Regulation (EC) No 2100/94 and, in order to
benefit from the exception to infringement, farmers 45 are required to pay an equitable
remuneration to the right holder under art.14(3) Regulation (EC) No 2100/94.
10-60 Art.27(j) UPCA derives from art.11(2) Biotech Directive and allows a farmer to use protected
livestock for an agricultural purpose, provided that the original breeding stock or other
reproductive material was supplied to the farmer by or with the consent of the patent
41
42
43
44
45
Stena Rederi AB v Irish Ferries Ltd [2003] EWCA Civ 66.
International Civil Aviation Organization (ICAO), ‛Chicago Convention’, Document 7300/9 (9th edition, 2006).
Directive 98/44/EC of the European Parliament and of the Council of 6 July 1998 on the legal protection of biotechnological
inventions (OJ No. L 213, 30.7.1998, p.13 to 21).
Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights (OJ No. L 227, 1.9.1994, p.1).
Other than “small farmers” as defined in art.14(3) Regulation (EC) No 2100/94.
© Bird & Bird LLP | May 2023
A Guide to the UPC and the UP 152
