EC Draft SEP Regulation and the TRIPS Agreement Compatibility Assessment

There are many issues stemming from the draft proposal which continue to fuel discussions and encourage disagreement among scholars and practitioners alike. The issue of prime importance to the author is the question of accessibility and availability of civil judicial remedies in patent litigation. Certain provisions proposed in the draft regulation appear to interfere with rights already guaranteed by the Agreement on Trade-Related Aspects of Intellectual Property (TRIPS Agreement). Specifically, Articles 21 and 43, relate to procedures which litigants must fulfil as a prerequisite to obtaining access to courts in patent litigation. This paper, therefore, seeks to investigate the enforcement limitations imposed by the draft regulations vis-à-vis the entitlements to approach the courts in patent disputes provided for under the TRIPS Agreement.