Case Note - Dick van Engelen: CJEU, 18 July 2013, (C-414/11)1F1F (Daiichi Sankyo and Sanofi-Aventis v DEMO) (IPPT20130718) (Opinion of A-G P. Cruz Villalón), Judges: V. Skouris, K. Lenaerts, A. Tizzano, M. Ilešič (rapporteur), L. Bay Larsen, T. von Danwitz, A. Rosas and E. Jarašiūnas, U. Lõhmus, J.-C. Bonichot, A. Arabadjiev, A. Prechal and C. G. Fernlund.
Introduction
The Daiichi judgment of the Court of Justice in 2013 has so far had the status of a 'wallflower' in intellectual property circles ('IP'), and did not receive the attention it deserves. This is strange for several reasons, if only because the Japanese word "daiichi" stands for "number one" and is therefore directly a flag that covers the content of the judgment: the Court of Justice becomes the highest court for almost the entire domain of intellectual property law ("IP") within the European Union.
The judgment shows that with the entry into force on 1 December 2009 of the Treaty of Lisbon, all intellectual property rights contained in the2F2F TRIPs Agreement annexed to the World Trade Treaty3F3F have become part of EU law. TRIPs is an acronym for "Trade Related Aspects of Intellectual Property Rights" and the TRIPs Agreement covers a large part of IP law. Thus, given the almost global coverage of the WTO, important elements of IP law are to a large extent globally harmonised, so that, for example, US, Chinese, Russian and European IP law are to a large extent uniformly regulated.
It is difficult to overestimate the impact of the Daiichi judgment within the European Union because it means that the Court does not only have jurisdiction when there are European IP directives or regulations, but that it is sufficient if the subject in question is covered by the TRIPs Agreement. This has made the Court, for example, the highest European patent court, while until now it was often assumed that the Court had no jurisdiction with regard to patent law, apart from those subjects that fall within the scope of the European Biotechnology Directive of 1998. All the more reason, therefore, to reflect on this ground-breaking judgment, albeit a little late.
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