6. The Agreement on Trade-Related Aspects of Intellectual Property Rights

The Enlarged Board observed in G 2/02 and G 3/02 that although the EPO is not a party to TRIPS and thus not bound by it, the national legal systems of the EPC contracting states might be affected by TRIPS and they may be under an obligation to see to it that the EPC is in conformity with TRIPS. 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. Whereas it is legitimate for the boards of appeal to use TRIPS as a means to interpret provisions of the EPC 1973 which allow different interpretations, specific provisions of TRIPS cannot justify ignoring express and unambiguous provisions of the EPC 1973. To do so would usurp the role of the legislator. This was confirmed by the fact that the legislator of the EPC 2000 found it necessary to revise Art. 87 EPC 1973 in order to implement the TRIPS.

In T 1173/97 (OJ 1999, 609) the board decided that, although TRIPS could not be applied directly to the EPC 1973, it was appropriate to take it into consideration in connection with the patentability of computer program products, since TRIPS was aimed at setting common standards and principles concerning the availability, scope, and use of trade-related intellectual property rights. It thus gave a clear indication of existing trends. The appellant's reference to practice at the US and Japanese patent offices caused the board to emphasise that the situation under these two legal systems differed greatly from that under the EPC 1973; only the EPC 1973 contained an exclusion such as that in Art. 52(2) and (3) EPC 1973. These developments nevertheless represented a useful indication of modern trends and, in the board's view, could contribute to the highly desirable further (worldwide) harmonisation of patent law. The issue of the application of TRIPS in the context of the EPC was also considered, for instance, in G 1/97, OJ 2000, 322.