With its judgment rendered on July 18, 2013 (Case C-414/11), the European Court of Justice (ECJ) held that the TRIPs (Agreement on Trade-Related Aspects of Intellectual Property Rights) falls within the field of the “common commercial policy of the Union”.
The ECJ is consequently the Court to which the interpretation of the TRIPs Agreement is demanded, also with respect to patent law provisions, notwithstanding the level of harmonisation eventually reached among the Member States.
In particular, the Court held that the provisions of Article 27 and Article 70 of the TRIPs – which recognize the full patentability of Pharma product inventions – are directly applicable in all Member States, including those which had ratified the European Patent Convention with a reservation (under Article 167 EPC) with respect to the patentability of product inventions in that specific field of technology.
Nonetheless, the Court confirmed that the direct applicability of the TRIPs Agreement does not bind the Member States to regard the Pharma patents, which were granted uniquely for the manufacturing process as covering, after the entry into force of TRIPs, the invention for the product.
This judgment ensures the certainty of law, by excluding that the original scope of a patent can expand as a consequence of the change of the laws regarding patentability.