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Court of Justice case C-539/13 (Merck v Sigma)

20 December 2013

The IP Federation is urging UK intervention at the Court of Justice of the European Union (CJEU) in Court of Justice case C-539/13 (Merck v Sigma).

The first question referred to the Court of Justice of the European Union, relat­ing to the Specific Mechanism in Chapter 2 of Annex IV to the Act concerning the conditions of accession of (inter alia) the Republic of Poland, is:

May the holder, or his beneficiary, of a patent or supplementary protection certificate rely upon his rights under the first paragraph of the Specific Mechanism only if he has first demonstrated his intention to do so?

In our view, the answer to question 1 should be “No”. We cannot think of any other scenario where a failure to reply to a letter by a potential infringer negates any infringement of IP rights. The general principle of EU intellectual property law is that silence is not taken to be consent. A result under which inaction leads to a loss of rights promotes form (administrative procedures) over the substance of protection for IP rights in Member States.



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