A niche blog dedicated to the issues that arise when supplementary protection certificates (SPCs) extend patents beyond their normal life -- and to the respective positions of patent owners, investors, competitors and consumers. The blog also addresses wider issues that may be of interest or use to those involved in the extension of patent rights. You can email The SPC Blog here

Friday 5 August 2011

Medeva and the interpretation of EU law: literal or teleological?

Earlier this week The SPC Blog posted "The holiday is over: a close reading of the Opinion in Medeva", in which Paul Inman expressed some bewilderment as to what precisely the Advocate General was advising the Court of Justice. It seems that Paul is not alone, since the blog has now received a further admission from a reader that this Opinion has caused confusion, this coming from International Patent Consultant Herwig von Morze. Writes Herwig:
"I share Paul Inman's confusion regarding paras 67-69 of the Advocate General's Opinion in Medeva, in particular since Art.1(c) uses the word "protects". May I add a confusion of my own? I am confused by the fact that the AG uses a literal interpretation for the purpose of rejecting the infringement test as the basis for the assessment of Art. 3(a). However, thereafter in the paras starting with 75, she rejects the literal interpretation essentially of the same articles as in conflict with the aims of the regulation. 
I haven't read any ECJ decision or AG Opinion which vacillates between literal interpretation for arriving at one conclusion and teleological interpretation to support the aims of a regulation. Such a selective approach seems arbitrary to me. Perhaps somebody with more ECJ experience can help and set me straight?"
My personal recollection is that the ECJ seems to favour starting from the teleological approach in intellectual property references even when its application contradicts the clear and unambiguous literal meaning of plainly expressed words (see eg Case C-292/00 Davidoff v Gofkid).  However, as a common lawyer I have no problem with inconsistency between the two approaches since I was brought up to believe that they were complementary rather than in conflict: one started with the literal interpretation and applied it -- unless (i) there was an ambiguity as to how it should be applied or (ii) its application produced a result that was clearly nonsensical, in which case one moved straight away to a teleological approach. The ECJ's approach is fortified by the availability of considerable material that is prepared for the purpose of aiding interpretation of Directives and Regulations, particularly in the form of the recitals in the preamble, whereas domestic statutory interpretation in the United Kingdom does not have such useful guidance, especially in the case of older statutes. However, the Court of Appeal for England and Wales in Neurim must have been wearing teleological spectacles when it viewed the law on SPCs and questuined whether it was "fit for purpose"

Readers' thoughts on Herwig's and Paul's comments are very welcome.

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