Belgian analysis of Community patent effect on European patent

http://register.consilium.eu.int/pdf/en/01/st13/13742en1.pdf

"This document summarises the aspects referred to by the Belgian delegation at the meeting on 29 and 30 October 2001 regarding the EC's accession to the European Patent Convention. The Belgian delegation's contribution was based on a study carried out by Professor Govaere of the University of Ghent on behalf of the Ministry of Economic Affairs concerning the institutional aspects of the EC's accession to the European Patent Convention.

When examining the impact of the Community's exclusive internal and external competence with regard to Community patents, a distinction should be drawn between – on the one hand – the effect of the exercise of the Community's competence regarding patents on Member States' powers, and – on the other hand – the consequences of the EC's accession to the European Patent Convention for the Member States' national legal systems."

"With regard to the European Patent Convention, the Court will therefore have exclusive competence to interpret the provisions applicable both to Community patents and to those European patents which represent a combination of national patents. Provisions which apply solely to European patents but in respect of which harmonisation exists at Community level will also fall within the scope of the Court's exclusive competence. In this respect it is essential that the Court's interpretation is binding on the national court which has requested the preliminary ruling 26 and on all other national courts. 27 The Court's competence to interpret means that it can also rule on the precedence and direct effect of the European Patent Convention in Member States' national legal systems. In future, therefore, the European Patent Convention, by analogy with the TRIPs Agreement, should be subject partly to the EC principles concerning precedence and direct effect and partly to Member States' constitutional laws concerning the effect of international agreements on the national legal system, depending on whether or not the EC has already legislated internally with regard to patents. This would imply that all the provisions of the European Patent Convention which also apply to the Community patent would in any case be subject to the EC principles concerning precedence, direct effect and uniform interpretation by the Court of Justice."