Merck & Co. Wins Precedent-Setting ECJ Judgment Regarding Application of TRIPS

The European Court of Justice ruled on September 11 that European Community national courts may give direct effect in their national legal orders to provisions of the WTO’s Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS). The judgment arose from a dispute between Merck Genéricos and Cleary Gottlieb client Merck & Co., Inc. concerning the alleged violation by Merck Genéricos of a patent held by Merck & Co. in Portugal.

The ECJ found that the Portuguese Supreme Court has absolute discretion to decide whether to give direct effect in Portuguese national law to Article 33 of TRIPS concerning the duration of patents. In doing so, the Court followed Cleary Gottlieb’s arguments on behalf of Merck & Co. that the field of patents has not yet entered the European Community “sphere” because of the absence of any significant European patent legislation.