1.2. Interpretation according to public international law

As an international treaty, the EPC has to be interpreted in accordance with the rules of interpretation developed in the so-called "law of nations" or public international law (G 5/83, OJ 1985, 64; G 2/12; G 2/13). The principles of interpretation set out in the Vienna Convention on the Law of Treaties concluded on 23 May 1969 (hereinafter “Vienna Convention”) and its application to the EPC is addressed in this chapter III.H.2.

In the interpretation of international treaties which provide the legal basis for the rights and duties of individuals and corporate bodies it is necessary to pay attention to questions of harmonisation of national and international rules of law. This aspect of interpretation, not dealt with by the provisions of the Vienna Convention, is particularly important where, as is the case with European patent law, provisions of an international treaty have been taken over into national legislation. The establishment of harmonised patent legislation in the contracting states must necessarily be accompanied by harmonised interpretation. The boards of appeal may take into consideration decisions and opinions given by national courts in interpreting the law (see G 5/83; see also G 2/12 and G 2/13). TRIPS provisions, like decisions of the European and International Courts of Justice and national decisions, are elements to be taken into consideration by the boards of appeal but are not binding on them (see G 2/02 and G 3/02, OJ 2004, 483, point 8.6 of the Reasons). Likewise, the interpretation of R. 101(9) EPC 1973 provided by the Administrative Council of the European Patent Organisation (the “Administrative Council”) did not have any formal binding effect on the boards of appeal (J 16/96, OJ 1998, 347).