PATENT PREOCCUPATIONS

ECJ patent reference

The UK Patent Office’s nifty service notifying webjunkies about cases referred by national courts to the ECJ has unearthed a reference from the Supremo Tribunal de Justiça. The Court asks "Does the Court of Justice of the European Communities have jurisdiction to interpret Article 33 of the TRIPs Agreement?"

The IPKat reminds readers that Art.33 of the TRIPs Agreement reads:

"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 hopes that the answer is no. Doing this through an Art.234 reference would amount to harmonisation of patent law through the back door.


Supreme Court to hear patent case

Forbes reports that the US Supreme Court has agreed that it will review a federal appeals court decision that prevents drug company Medimmune from challenging a Genentech patent. Medimmune claims that the Genetech patent was procured in breach of the antitrust laws. However, the federal court found that Medimmune, as a licensee, was barred from challenging the validity of a patent which it was licensing.

The IPKat understands the symmetry of this rule – if you don’t like the patent, don’t take a licence in the first place. But at the same time he reckons that if there are grounds for invalidating the patent which should the licensee, who has one of the strongest interests in the patent’s continued existence (or lack thereof) be barred from relying on those grounds?