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Merck & Co. v. Stephar B.V.
European Communities Court of Justice
Case C-187/80 (1981)
Merck & Company, Inc. (Merck) (plaintiff) owned two patents in the Netherlands for the drug Moduretic. Merck sold Moduretic in Italy, where Merck did not have a patent for the drug because, at that time, Italian law did not allow patents for drugs. Both Italy and the Netherlands were member states of the European Economic Community (EEC). The law in the Netherlands gave a legal remedy to a patent owner against another party selling the patent-protected product in the Netherlands, even if the holder of the patent marketed that product for sale in another member state. Stephar BV (defendant) purchased Moduretic in Italy and imported it for sale in the Netherlands. Stephar argued that under the provisions of the EEC Treaty concerning the free movement of goods, once a patent owner offered a patented product for sale in a member state in which the product was not patentable, the importation and sale of that product was permitted in a member state in which the product was protected by patent. The court in the Netherlands referred a question for a preliminary ruling under the EEC Treaty to the European Communities Court of Justice concerning the relationship between the treaty’s free-movement-of-goods provisions and the treaty’s provision governing member states’ national laws protecting industrial and commercial property.
Rule of Law
Holding and Reasoning (Mertens de Wilmars, C.J., Pescatore, Stuart, Koopmans, O’Keeffe, Touffait, Due, Everling, Chloros, J.J.)
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