Comparative Patent Law: American Home Products v Novartis ((2001) RPC 159) elevates the protocol questions to the test for patent infringement. It needs to be at least 3750 words. In general the aim is to provide a means by which national patents in Europe will provide patent protection which is consistent with its claim so that the patentee receives fair protection and third parties are reasonably assured of the ambit of that protection. The purpose of this paper is to examine the ambit of Article 69 and its protocol and to determine how the UK has met its obligations under the Article for providing for outcomes that are consistent with the goals and intentions of the European Patent Convention.
Quite often a patent claim can include language which can be interpreted to restrict its use so that the patentee has a monopoly on variants of the original patent. This may or may not be his intentions and in the absence of a protocol on interpretation the patentee’s intention may be unfairly misinterpreted. On the other hand, a third party may go to the expense and labour of developing variants and it may be unfair to extend a wider meaning to the patent claim that can not reasonably be inferred. The Protocol attempts to reconcile these competing interests. The case of American Home Products v Novartis  1 RPC 8 considers this juxtaposition and will be examined together with other key cases in determing how the UK courts have met the obligations for balancing these interests under the Protocol to Article 69 of the European Patent Convention.
The European Patent Convention 1973 was amended in 2000 to take account of international law developments and to make provision for the minimum standards applicable to Intellectual Property rights and protection under the World Trade Organization.2 The European Patent Convention 2000 came into effect in December 2007 and is binding on all signatories to the European Patent Convention.