Of Trips and Traps: The Interpretative Jurisdiction of the Court of Justice of the EU Over Patent Law

Abstract

Using the pending Daiichi Sankyo case as a point of reference, this article examines whether EU exclusive competence under Article 207 TFEU requires the CJEU to interpret the patent provisions of the TRIPS Agreement and, if so, what are the implications for patent protection in the EU. It examines whether the Court’s jurisprudence on the direct effect and interpretation of the substantive patent provisions of the TRIPS Agreement is good law in the post-Lisbon era, arguing that the Court has acquired interpretative jurisdiction over the entire TRIPS Agreement. Secondly, it looks into the implications of a CJEU interpretative jurisdiction over TRIPS on the development of uniform EU patent rules in light of the recent developments regarding the establishment of a Unified Patent Court and a EU Patent with Unitary Effect. It concludes that the CJEU can play a key role in safeguarding coherence and consistency in the application of the different regimes of patent protection in the EU.