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III. Intellectual Property

Published online by Cambridge University Press:  17 January 2008

Karl Newman and
Catherine Seville
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The period since the last note on this subject has been eventful.1 There have been some important legislative measures, and a good deal of significant case law. However, contradictory messages are being conveyed. The volume of legislation marks the Community's recognition of the economic value of intellectual property rights in international trade. Its broad aim is, as always, to achieve a level playing-field for competition, and to integrate the market by removing restrictions on the free movement of goods. Yet the unwavering adherence to the principle of free movement is being challenged in several areas, precisely because of its effect on competition, notably in the pharmaceuticals market.

Information

Type
Current Developments: European Community Law
Information
International & Comparative Law Quarterly , Volume 46 , Issue 3 , July 1997, pp. 712 - 716
Copyright
Copyright © British Institute of International and Comparative Law 1997

References

1. (1995) 44 I.C.L.Q. 712 (Part 3—July).Google Scholar

2. Case C-267–268/95 Merck & Co. Inc. v. Primecrown Limited [1997] 1 C.M.L.R. 83.Google Scholar

3. Case 187/80 (1981) E.C.R. 2063.Google Scholar

4. The ECJ has accepted that a patent holder does not “consent” to the activities of a compulsory licensee: Case 19/84 Pharmon v. Hoechst AG [1985] E.C.R. 2281.Google Scholar It is arguable that there may be a legal obligation either under national law or under Community law (Arts.85 and 86 EC) to maintain supplies to a particular market. It was also argued in the present case that there was an ethical obligation to continue to supply a product which had been released in a member State and was being prescribed by doctors there.

5. Reg.240/96 (1996) O.J. L31/2.Google Scholar

6. After a general economic assessment of the licensing relationship, the Commission may withdraw the benefit of the block exemption where the agreement has effects incompatible with Art.85(3) EC.

7. Joined Cases C-427,429 and 436/93, Bristol-Myers Squibb & Others v. Paranova A/S; Joined Cases C-71, 72 and 73/94, Eurim-Pharm Arzneimittel GmbH v. Biersdorf AG & Others; Case C-232/94, MPA Pharma GmbH v. Rhône-Poulenc Pharma GmbH [1977] F.S.R. 102.Google Scholar

8. Existing case law formed the starting point. The four conditions from Case 102/77, Hoffmann-La Roche v. Centrafarm [1978] E.C.R. 1139Google Scholar, were explicitly reiterated and approved. The trade mark owner cannot resist repackaging if his marketing system contributes to the artificial partitioning of markets, if repackaging does not affect the original condition of the product, if he receives prior notice (and a specimen on demand), and the identity of the repackager is printed on the product.

9. Council Directive 89/104/EEC (1989) O.J. L40/1.Google Scholar

10. Notably Wagamama v. City Centre Restaurants plc and Another [1995] F.S.R. 713Google Scholar; British Sugar plc v. James Robertson & Sons Ltd [1996] R.P.C. 281Google Scholar; Barclays Bank v. RBS Advanta [1996] R.P.C. 307Google Scholar; BASF plc and Another [1996] E.T.M.R. 51.Google Scholar

11. Directive 93/98 on Term of Protection of Copyright (1993) O.J. L248/15.Google Scholar Directive 92/100 on Rental Rights, Lending Rights etc. (1992) O.J. L346/61.Google Scholar Directive 93/83 on Copyright and Neighbouring Rights relating to Satellite Broadcasting and Cable Retransmission. Implemented in the UK by Duration of Copyright and Rights in Performances Regulations (S.I. 1995/3297) and the Copyright and Related Rights Regulations (S.I. 1996/2967).

12. For which see Part III of Regulations mentioned in the preceding note. The UK has been much more specific on these matters than most member States.

13. Copyright, Designs and Patents Act 1988, s.9(2)(ab).

14. The CDPA 1988 defines infringement by reference to a list of “acts restricted by copyright”: S.16(1). The previous total of five restricted acts has thus been increased to six as a result of the Rental Directive.

15. (1996) O.J. C178/16.Google Scholar This is heavily criticised in Judge Jacob's Stephen Stewart Lecture (1996, not yet published).

16. The Netherlands, Austria, Ireland and the UK do not recognise such a right.

17. This expression is intended to cover pictures, collages, paintings, drawings, engravings, prints, lithographs, sculptures, tapestries, ceramics and photographic work.

18. The proposed rates are: 0% on the first 1,000 ECUs; 4% of the price between 1,000 and 50,000 ECUs; 3% between 50,000 and 250,000 ECUs; and 2% on any excess.

19. (1995) O.J. C288/14.Google Scholar

20. Potentially indefinite protection is therefore available for dynamic databases (such as telephone lists, share prices etc.), as for the new editions of a book.

21. (1995) O.J. C68/26.Google Scholar

22. (1996) O.J. C296/3.Google Scholar

23. The previous draft provided that the human body as such or parts of the human body as such should not be patentable. The new version provides that “the human body and its elements in their natural state shall not be considered patentable inventions.” For further discussion see Jones [1996] E.I.P.R. 363.