of the Vienna Convention because the text of the WTO Agreement and the legal arrangements governing the transition from the GATT 1947 to the WTO resolve the issue of the relationship between Schedule LXXX and the Oilseeds 2 Appellate Body Report, Guatemala – Cement I, para. 64.
of the Vienna Convention. As observed by Peukert, every instrument articulates its object and purpose(s). Although not of the same legal significance as the provisions of the treaty, much can be inferred from the preamble. Alexander Peukert, ‘Intellectual Property as an End in Itself?’ (2011) E.I.P.R. 33 67. 302 Recital 1 of the UPC Agreement; This belief is also voiced in Recital 4 of the Unitary Patent Regulation. 303 Recital 2 of the UPC Agreement; This belief is also voiced in Recital 4 of the Unitary Patent Regulation. 304 Recital 5 of the UPC Agreement. Emphasis added. The same choice of words can be found in Recital 4 of the Unitary Patent Regulation. 305 Recital 5 of the UPC Agreement. 306 Michael Christian Alexander, Cross-border Patent Infringement Litigation within the European Union (Ulrik Huber Institute for Private International Law, 2015), 503. 307 Recital 6 of the UPC Agreement. balancing act. The preamble also does not say anything about whether this balancing act should generally tip in favour of the rightholder - as is generally the approach in Europe - or whether this “fair balance” may go beyond exceptional circumstances.308 Looking at the instruments related to the UPC Agreement does not give us much insight either, unfortunately.309 The preamble of the Unitary Patent Regulation focuses mostly on administrative issues, the effects of the unitary patent and its scope, which means it does not mitigate the ambiguity of the UPC Agreement on enforcement. The Translations Arrangements Regulation, however, does contain a few relevant factors for disputes involving damage claims. The preamble of this instrument states the need for the competent court to make its assessment on a case-by-case basis.310 Moreover, it says that the court should consider that the alleged infringer may have acted in good faith until being provided with a translation of the protected subject-matter in his own language and may not have had knowledge or reasons to suspect he or she was infringing the patent in question.311 Furthermore, the court should also take into consideration whether the alleged infringer is a SME conducting business solely on a local market.312 Of course, this only provides limited guidance for a specific type of claim, but it may, nevertheless, be useful. It shows that the type of party may be a relevant consideration for the court in deciding whether and/or how to enforce a patent, as well as the market a company is operating in. Nevertheless, the UPC Agreement itself d...
