Interpretation of IP Treaties in Accordance with Art 31-33 VCLT: A Case Study on the Practice of the European Patent Office

Abstract

The paper offers a first systematic analysis of the 76 decisions and opinions of the European Patent Office (EPO) Enlarged Board of Appeal and Board of Appeals making explicit reference to the interpretation criteria of the Vienna Convention of the Law of Treaties (VCLT). It explores whether the EPO Boards' use of those criteria matches with the current teachings of public international law experts on the VCLT. The EPO Boards make extensive use of Articles 31-33 VCLT and discuss the different criteria enshrined in the VCLT in detail. The paper concludes that the EPO Boards use the VCLT criteria to justify their textual and historical approach of interpretation. By contrast, the EPO Boards do not exhaust the potential of a purpose-oriented interpretation.