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COM (84) 335 
 
 
 
Vol. 1984/0 148 
  
 
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concernant l'ouverture au public des archives historiques de la Communauté économique 
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In accordance with Council Regulation (EEC, Euratom) No 354/83 of 1 February 1983 
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In Übereinstimmung mit der Verordnung (EWG, Euratom) Nr. 354/83 des Rates vom  1. 
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C O M M I S S I O N  O F  T H EE U R O P E A N  C O M M U N IT IE SCOM(84) 335 final
B r u s s e l s ,  12 June 1984
FOR OFFICIAL USE ONLY
NEGOTIATIONS FOR T H E  ACCESSION OF PORTUGAL
Proposal on patents
(Commission communication to the Council)
COM(84) 335 final

EXPLANATORY MEMORANDUM
1
1· 0n 27 April 1983 the Commission transmitted to the Council an initial 
communication on the implementation by Portugal of the acquis communautaire 
with regard to patents. The Community made a substantive statement, based 
essentially on that position, at the 13th meeting of the Conference at 
Ministerial level on 25 May 19832.
2. Contrary to what was expected when the Community position was being 
prepared in May 1983, it has not been possible to achieve an agreement between 
Portugal and the Community in this field.
On the contrary, the gap between the two sides has widened to the point where 
the present state of the negotiations may be characterized by two negative 
developments :
(i) at the 16th meeting of the Conference at Ministerial Level on 
23 January 19843 Portugal rejected the proposals presented by the 
Community in its statement of 25 May 1983;
(ii) Portugal has recently seen fit to make major changes in its
legislation which put it very much out of Line with the level of 
protection of industrial property achieved in the Community.
3. These changes in Portuguese legislation, which are described in generaL 
terms in the first part of this proposal, are of such an extent that it 
would not appear that the Commission can be satisfied with the proposals it 
made on the basis of a given Portuguese legislative situation, as the 
Community moreover emphasized in its statement of 25 May 1983.
4. In the light of this situation the Commission must present the Council 
with new proposals so that negotiations may be brought to a conclusion on 
this matter as quickly as possible. That is the purpose of the second part 
of this communication, which examines in detail and point by point the 
changes made by Portugal and accordingly sets out new proposals.
5. The Commission is called upon to adopt this proposal and decide that 
it be transmitted to the Council.
C0MC83)228 final 
2C0NF-P/44/83 
3C0NF-P/8/84

-  1 -
INTRODUCTION
1. This communicatie»-'deals with implementation by Portugal of the 
acquis communautaire with regard to patents.
2. The first part gives a general rundown on the background
and the problems involved. It outlines, in order to emphasize the 
negative, retrograde aspect, how the Legislation and the 
Portuguese position have evolved, the amendments and changes being 
analysed in detail in the second part.
3. The second part is concerned with formulating, point by point, the 
Commission's specific proposals, on the basis of a precise account 
of the Portuguese positions and of the shifts that have occurred, 
and of the Commission's thinking on the various problems examined.

- 2 -
I- BACKGROUND AND GENERAL CONSIDERATIONS
Negotiations with Portugal on patents can be divided into two successive 
phases:
i. initially, Portugal presented its position and the Community gave 
a reply, couched in such terms that a rapid resolution of this 
matter could be expected;
ii. Portugal then amended its legislation in such a way that it now 
lags behind the level of protection of industrial property 
achieved in the Community and it also shifted its negotiating 
position, widening the gap between it and the 
Commun1 ’  ty.
<1> Portugal's initial position and the Community's reply
Portugal presented its position regarding patents for the first time in a 
Statement made at the 22nd meeting of the Conference at Deputy Level, held on 
12 November 1982^.
In that statement Portugal confined itself to pointing out that, although there 
were process patents in Portugal there were no product patents in respect of 
foodstuffs, chemicals and pharmaceuticals, and accordingly to requesting, 
without specifying how long it should last, a "sufficiently long period of 
adjustment before being in a position to undergo the effects of the product 
patent".
It should be noted that, unlike the Spanish legislation, the Portuguese 
legislation on patents, as it stood when the Portuguese position was presented, [
included, since 30 May 1980, a provision on reversal of the burden of proof. !
According to that provision, which is very protective for the proprietor of >
the process patent, it is up to the presumed infringer to furnish proof that 
he has not infringed the process (hence it is not the ordinary law situation 
which prevails, namely that it would be up to the proprietor of the patent to 
prove infringement).
2On 27 April 1983 the Commission transmitted to the Council its proposal for
t ha nigatiationt on the patent a chapter of the Portuguese aooeoa-ion negctiati ono >
CONF-P/89/82
2C0M(83)228 final

» 2 ^
The Community position was presented to Portugal at the 13th meeting of 
the Conference at Ministerial level, on 25 May 19831.  Given the state of 
the Portuguese Legislation, as referred to above, the Commission proposal 
and the Community position were far more flexible than those earlier adopted 
in respect of Spain.
Tnus the position adopted with regard to Portugal made no provision, unlike 
the position taken vi s-a-vi s Spain, for a derogation from the application 
of Articles 30 et seq.  of the EEC Treaty. In the case of Spain the Member 
States had agreed to insert in the Treaty with Spain a provision whereby, 
by way of temporary derogation from the provisions of the EEC Treaty, the 
proprietor of or those entitled to a patent for a chemical or pharmaceutical 
product filed in a Member State at a time when a product patent could not 
be obtained in Spain for that product, could invoke the right conferred 
by that patent in order to prevent the product in question from being imported 
and marketed in the Member State(s) in which that product is protected by 
a patent, even if the product had been put on the market in Spain for the 
first time by himself or with his consent. Obviously the purpose of this 
was to guard against parallel imports from a new Member State of products 
manufactured in that state and priced lower than products manufactured in 
the other Member States.
(2) Retrograde nature of Portuguese legislation
In 1983, after the Community position had been presented, Portugal went 
into reverse in three stages, calling into question the affinities between 
Its legislation and the level of protection of industrial property achieved 
in the Community.
(a) iJsi22DSTion_of_r eve rsal_gf_the_burden_of_g roof
On 21 June 1983, shortly after the Community position had been presented, 
Portugal published a Decree-Law (No 289/83) repealing the provision on reversal 
of the burden of proof. On 25 May the Commission had, however, presented
CONF-P/44/83

^ m
its position to Portugal on the basis of Portuguese legislation in force 
at that time, the presumption being that this legislation, insofar as reversal 
of the burden of proof was concerned, would not be amended.
(b) Amendment_of_the_condit ions_for_en 20^ing_tlie_exclusive right ^confer red 
^-3-62igQ£„iSSued- > in_Portugal
A Decree-Law of 18 January 1984 (No 27/84) further widened the gap between 
Portuguese patent law and the level of protection of industrial property 
achieved in the Community. ArticLe 8 of the Decree states that, in order 
to enjoy henceforth the exclusive right conferred by a patent issued in 
Portugal, the proprietor of the patent must manufacture on Portuguese territory 
the patented product or the product obtained using a patented process.
If he makes do with importing the product in question into Portuguese territory, 
his patent does not confer upon him an exclusive right. Therefore in this 
case, the proprietor of the patent is deprived of any means of action, under 
patent law, in respect of infringers manufacturing in Portugal or importing 
copies of the patented product. It should be pointed out that Portugal 
made no mention of this new Decree-Law in its statement of 23 January 1984 
referred to below, an omission which it is difficult to understand.
(c)  £2E£y9yi§®-§t§Tement_of_23_Januar^_1984_and_the_reguest_for_a_geriod 
°l_£SD_!££2ES_before_acceding_to_the_Munich_and_Luxembourg_Cgnyentions
Portugal replied to the Community position at the 16th meeting of the 
Conference at Ministerial level on 23 January 1984 .  Whereas, during the 
technical contacts subsequent to the presentation of that position, it had 
apparently accepted the position regarding the timetable for its accession to 
the Munich and Luxembourg Conventions (for the detailed arrangements, see 
second part of this proposal, points 3 and 4), it is now asking to accede to 
the Munich and Luxembourg Conventions at the end of a ten-year period from 
the date of accession.
*
* *
In view of this threefold retreat by^ Portugal on this matter, the Commission 
is justified in presenting new proposals, which are set out in the following 
part of this document.
lONF-P/44/83

- 5 -
11 *  COMMISSION proposals
The proposals must be concerned with the following five specific points:
» conformity of Portuguese legislation with the Level of protection 
of industrial property achieved in the Community;
- reversal of the burden of proof;
accession of Portugal to the Munich Convention;
· »  accession of Portugal to the Luxembourg Convention;
introduction of a temporary derogation from free movement of
products within the Community.
CD ÇonformUy_of_Pgrtuguese_legi_sLat ion^wi th_the_ Leve l__of _grotect ign 
of_industrial property_achieved in the Community
(a) Initial Commission position and Community statement of 25 May 1983
When the Commission's initial position was drawn up and the Community statement 
presented on 25 May 1983 Portuguese patent law did not contain any provisions 
analagous to those which Spain had been asked to abolish or adapt to the 
level of protection achieved in the Community (e.g., exclusive compulsory 
licence, introduction patent, etc).
The Community nevertheless felt it necessary to ask Portugal to undertake, 
by means of a general clause, to ensure that upon accession its legislation 
was compatible with the principles of free movement of goods and with the 
Level of protection of industrial property achieved in the Community.
(b) Portuguese statement of 23 January 1984
In its statement of 23 January 1984 Portugal failed to reply to the 
Community's request regarding the general clause referred to above.
1C0NF-P/44/83
2C0NF-P/8/84

-  6 -
(c) Changes in Portuguese Legislation
Changes in Portuguese Legislation make it easy to understand why Portugal 
failed to reply to the request that it accept such a general clause.
Firstly, by Decree-Law No 285/83 of 21 June 1983, Portugal repealed the 
provision which had introduced into Portuguese legislation reversal of the 
burden of proof for process patents (see point 2 below).
Secondly, by means of Decree-Law No 27/84 of 18 January 1984 (Article 8) 
Portugal adopted a definition of the right conferred by a patent which is 
very different from that commonly accepted in the Member States of the 
Community. The text of the article in question means that, in order to 
enjoy the exclusive right conferred by a patent issued in Portugal, the 
proprietor of that patent must manufacture on Portuguese territory the 
patented product or the product obtained using a patented process. This 
definition of the right conferred by the patent is very different from that 
in force in the Member States of the Community and from that provided for 
in the Luxembourg Convention. It means that, in order to enjoy the 
exclusive right conferred by a patent issued in Portugal, the patent must 
be actually exploited in that country, imports not being taken into 
consideration in this respect.
(d) Commission's views
The changes which were made in Portuguese patent law while the accession 
negotiations were actualLy taking place on this chapter reveal the need 
for an arrangement making Portuguese patent law compatible, upon accession, 
with the level of protection of industrial property achieved in the Community.
In particular, it is essential that the Community obtains alignment of the 
definition of the patentee's rights - which is the cornerstone of 
protection - with Community standards.
(e) Commission proposal
The Commission proposes that Portugese patent law should be made compatible, 
by the time of accession, with the principles of free movement of goods 
and with the level of protection of industrial property achieved in the 
Community.

- 7 -
Portugal must in particular rescind Article 8 of Decree No 2718 of 
18 January 1984, whereby the proprietor of a patent issued in Portugal must, 
in order to enjoy the exclusive right conferred by that patent, manufacture 
on Portuguese territory the patented product or the product obtained using 
a patented process.
In order to achieve the above objectives close collaboration will be 
established between the Commission departments and the Portuguese authorities.
(2) Reversal_of_the_burden_of_groof^
(a) Ç2îïïlâ§l2E!s_initial_gositign_and_Community statement_of 
25_May_1983
When the initial Commission position was drawn up and the Community statement 
of 25 May 1983 made, the situation was very different from today, since 
at that time Portuguese legislation provided for an arrangement regarding 
reversal of the burden of proof.
Therefore the Community, on a proposal from the Commission, had simply considered 
it appropriate to ask Portugal to specify the implications of its national 
legislation in order to ensure that the provision on reversal of the burden 
of debt would actually apply upon the date of accession, to all patents, 
including those filed before the entry into force of the Decree of 30 May 1980 
which made such provision.
However, in the light of information obtained at the time when the Community 
position was being finalized, namely that the Decree of 30 May 1983 would 
be declared void, the Community considered it appropriate to inform Portugal 
further that its position was based on Portuguese legislation as it stood 
at the time and assumed that such legislation, insofar as reversal of the 
burden of proof was concerned, would not be amended.
(b) Amendment_of_the_Portuguege_legis^ation_and_Comm 2SSion j_s_vlews
Portuguese Decree-Law No 289/83 of 21 June 1983 revoked the provision which 
had introduced into Portuguese legislation reversal of the burden of
---------
CO
NF-P/44/83

-  8 -
proof. This major amendment of Portuguese Legislation, which took place 
shortly after the presentation of the first Community statement, was not 
Officially brought to the Community's attention by Portugal until the 
Portuguese statement of 23 January 19841.
In the Commission's view this negative development radically modifies the 
situation regarding the patents aspect of the accession negotiations.
The Commission drew the appropriate conclusions from this new situation 
with regard to the free movement of goods within the Common Market and considers 
that the Community must ask Portugal to undertake to reintroduce the principle 
of reversal of the burden of proof for any process patent, a principle 
embodied in Article 75 of the Luxembourg Convention. Nevertheless the Commission, 
in an effort to achieve a compromise solution, considers that Portugal should 
be asked, as happened in the case of Spain, to apply this rule upon accession 
only to process patents filed after that date. In the case of process patents 
filed before accession, it would not take effect until a later date, which 
should be fixed, as happened in the case of Spain, as 7 October 1992.
(c) Çommi_sslon_grogosa l
The Commission proposes that Portugal should, upon accession, introduce into 
its national legislation a provision on reversal of the burden corresponding 
to Article 75 of the Luxembourg Convention. This provision must apply upon 
accession with regard to new process patents filed after the date of accession.
In the case of patents filed before that date, this provision must be applied 
by 7 October 1992 at the latest,
(3) Portugal's accession to the Munich Convention 
(a) Portuguese statement of 12 November 19822
Since there is no product patent in Portugal for foodstuffs, chemicals and 
pharmaceuticals, Portugal requested a "sufficiently long period of adjustment 
before being in a position to undergo the effects of the product patent".
CONF-P/8/84
2C0Nf-P/89/82

- 9 -
In technical contacts with the Commission departments the Portuguese 
delegation pointed out, in support of its request,, that the food, chemical 
and pharmaceutical industries in Portugal were very backward and had only 
a very limited research capacity. Accordingly, it appeared that the immediate 
introduction of patent protection for the products of these industries would 
create serious economic, social and structural problems and would make it 
extremely difficult for these industries to continue their activities.
(b) Initial Commission position and Community statement of 25 May 1983
The Commission and the Community have shown great understanding of the 
Portuguese position.
It should be noted that, in order to understand this position, Article 167 
of the Munich Convention stipulates that a Contracting State may, for a 
period of ten years from the entry into force of the Convention, reserve 
the right not to provide for patent protection in respect of food, chemical 
or pharmaceutical products. This transitional period expires on 
7 October 1987.
However, the Administrative Council of the European Patent Organization 
may, at the request of a Contracting State which has become a member by 
7 October 1986 at the latest, decide to extend the validity of the reservation 
by five years or more, that is until 7 October 1992 at the latest.
Therefore the Community, on a proposal from the Commission, asked Portugal
1in its statement of 25 May 1983 , to accede to the Munich European Patent 
Convention by the required date (i.e., by 7 October 1986) to enable it to 
invoke Article 167 of the Munich Convention in respect of foodstuffs, chemicals 
and pharmaceuticals.
The Community added that, in this context, the Member States of the Community, 
as Contracting States to the Munich Convention, undertook to do their utmost 
to obtain, on the basis of the request, provided for in Article 167 of the 
Convention, which would be presented by Portugal, an extension - dated
T— ---------------CÛ
NF-P/44/83

-  10 -
7  October 1 9 8 7  and for the maximum period provided for in the Munich 
Convention - of the validity of the reservation provided for in said 
Article 167.
(c) Portuguese statement of 23 January 1984
In its statement of 23 January 19841  Portugal rejected the Commission proposals 
and requested that it should accede to the Munich Convention upon the expiry 
of a period of ten years from its accession to the Community/ at the end 
of which period it would assume all the obligations resulting from that 
Convention. Portugal justified this request in that it was "essential for 
the chemical/ pharmaceutical and food industries to have enough time to 
adapt to the new conditions created by the adoption of the product patent".
(d) Commission views
The Commission considered that, on the grounds put forward above, the 
possibility of Portugal's not acceding to the Munich Convention in its 
entirety until such a long period had elapsed was out of the question.
On the contrary/ the problems which the food/ chemical and pharmaceutical 
i  ndüstri es wou Id encounter should be isolated in order to provide a specific 
solution. Otherwise the Portuguese request would result in a solution which 
was justified for three sectors onLy being generalized to cover all 
industrial sectors.
The Commission therefore considers that the Community must stick to its 
initial proposal. Under that proposal the Portuguese industries in question 
would have a fairly long transitional period in which to undergo modernization: 
nearly seven years as from accession to the Communities, if the Latter takes 
place on 1  January 1 986. This solution of course assumes that, in accordance 
with the undertaking given by the Member States, Portugal will be granted 
the derogation provided for in Article 1 6 7  of the Munich Convention. If 
that condition could not be met, Portugal would be entitled to withdraw 
from the European Patent Organization up until the date when it could have 
been granted the derogation, that is up until 7  October 1 9 9 2 .
(e) Commission proposal
The Commission proposes that Portugal accede to the Munich European Patent 
Convention within the period .required to enable it to invoke Article 1 6 7  ,
of that Convention in respect of chemical, pharmaceutical and food products.

In this context, given fulfilment of the undertaking to be entered into 
by Portugal to make its Laws compatible upon accession with the principles 
of free movement of goods and with the Level of protection of industrial 
property achieved in the Community, the Member States of the Community, 
as Contracting States to the Munich Convention, undertake to do their 
utmost to ensure, on the basis of the request, provided for in 
Article 167 of said Convention, to be made by Portugal, that the validity 
of the reservation provided for in said Article 167 will be extended beyond 
7 October 1987 for the maximum period provided for in the Munich Convention.
If extension of the above-mentioned reserve cannot be obtained Portugal 
will be able to invoke Article 174 of the Munich Convention, which 
provides for the possibility of denouncing the Convention, it being 
understood that it must accede to said Convention by 7 October 1992 
at the latest,
(4) Ë2£iü9âiiS.à££êlSi2D_i2_iÎ2S_!süïS!!!boyrg_Convent1on
(a) Portuguese statement of 12 November 19822
For the same reasons set out in point 3(a) above Portugal requested in 
this statement that it be granted a certain unspecified period before 
acceding to the Convention because the food, chemical and pharmaceutical 
industries needed a sufficiently long period of adjustment before being 
in a position to undergo the effects of the product patent.
3(b) Commission's initial position and Community statement of 25 May 1983
The Community, on a proposal from the Commission, requested that Portugal 
accede to the Luxembourg European Patent Convention upon expiry of the 
derogation provided for in the Munich Convention regarding the 
reservation embodied in Article 167 of that Convention.
The Community pointed out that, upon expiry of that derogation, Portugal 
should accede to the Luxembourg Convention without resorting to the 
procedure, provided for in Article 95(4) of that Convention, which 
stipulates that "a special· agreement may be concluded between the
AThis Article is worded as follows:
"Any Contracting State may at any time denounce this Convention. Notification 
of denunciation shall be given to the Government of the Federal Republic of Germany 
Denunciation shall take effect one year after the date of receipt of such 
notification".
2C0NF-P/89/82.
3C0NF-P/44/83.-  11 -

-  12 -
Contracting States and the acceding State, to determine the details 
of application of this Convention necessitated by the accession of that 
State".
A(c) Portuguese statement of 23 January 198A
In this statement Portugal said that it considered that it should accede 
to the Luxembourg Convention at the end of a transitional period of 
ten years from the date of accession to the Community.
Portugal also pointed out that it should not reject any of the provisions 
contained in the Convention (such as the Article 95(A) procedure).
(d) Commission's views
The Commission considers that the Community must maintain its initial 
position, which was accepted by Spain, namely that Portugal's accession 
to the Luxembourg Convention should take place by 7 October 1992 at 
the latest.
With regard, however, to Article 95(A) of the Luxembourg Convention, the 
Commission, after reviewing the problem, and in view of the fact that this 
solution was also adopted in connection with Spain, considers that Portugal 
is justified in requesting that a special agreement be concluded.
However, it is clear that the purpose of such a special agreement should 
be limited, in accordance with Article 95(A) above/ to making the purely 
technical adjustments made necessary by Portugal's accession to the 
Luxembourg Convention and should not delay that country's accession to 
the Luxembourg Convention.
(e) Commission proposal
The Commission proposes that, upon expiry of the derogation provided for 
in respect of PortugaL under Article 167 of the Munich Convention, Portugal 
should accede to the Luxembourg Community Patent Convention.
The Commission also proposes that Portugal should be able to invoke 
Article 95(A) in order to make the purely technical adjustments necessitated 
by its accession to the said Convention, it being, however, understood 
that this will not be able to delay Portugal's accession to the 
Luxembourg Convention beyond the above-mentioned date.

- 13 -
(5) iDt roduc t T_on_gf _a_temgor;a r^;_de roga t 2on_ f rom—f ree^movement _of
922^§_iili!2iD _i!!!§-.£2!!!!!!yD iiil
(b) Commisalon1s views
Up until now this question had not arisen in respect of Portugal given
that, when the Commission adopted its first proposal and presented the
1Community position on 25 May 1983, the Portuguese delegation included 
a provision on reversal of the burden of proof in the event of an 
infringed process. Under that provision - which is highly protective 
for the proprietor of a process patent and thus alleviates the effects 
of the absence of product patentability - it was stipulated that the 
product manufactured by a third country which was identical to a new 
product obtained by a process patent was, subject to proof to the 
contrary, deemed to have been obtained from that process. The burden of 
proof fell to the third party, as defendant in the infringement 
proceedings, and not to the proprietor of the patent.
However, this question had arisen in the case of Spain, whose legislation 
did not provide for any provision on reversal of the burden of proof.
With regard to Spain, the Community therefore requested and obtained a 
derogation from Article 30 et seq.  of the EEC Treaty concerning free 
movement of goods. The Community considered that, having regard to the 
fact that there was no product patentability or provision on reversal of 
the burden of proof obliging manufacturers to sell in Spain at relatively 
low prices owing to competition from Imitators, it was Legitimate to 
enable such manufacturers to protect themselves, in the Member States in 
which their products are patented and probably sold at higher prices, 
from imports of such products marketed in Spain.
In the case of PortugaL, the question now arises in identical terms.
The fact that there is no product patentability for foodstuffs, chemicals 
and pharmaceuticals, combined with the absence - since its elimination 
by the Decree-Law of 21 June 1983 * of a provision on reversal of the 
burden of proof, may oblige industries in the present Member States to 
sell at relatively low prices because of possible competition from 
imitators. The Commission therefore regards it as legitimate that
1C0NF-P/44/83.

-  14 -
the Community should request Portugal/ like Spain/ to permit such 
industries to protect themselves/ in the Member States in which their 
products are patented and probably sold at higher prices/ from parallel 
imports of such products marketed by them in Portugal. The Commission 
therefore proposes that there shouLd be inserted in the Accession Treaty 
a temporary derogation from free movement of goods within the Community 
which is identical to that adopted in the case of Spain.
(b) Commission proposal
The Commission proposes that there should be inserted in the instruments 
of accession a provision whereby/ by way of temporary derogation from 
the provisions of the EEC Treaty, the proprietor of or party entitled to 
a patent for a chemical, pharmaceutical or food product filed in a 
Member State at a time when a product patent could not be obtained in 
Portugal for that product, may invoke the right conferred by that patent 
in order to prevent the product in question from being imported and 
marketed in the Member State(s) in which that product is protected by 
a patent, even if the product in question has been put on to the market 
in Portugal for the first time by himself or with his consent.
This right may be exercised, in respect of foodstuffs, chemicaLs or 
pharmaceuticals, until the end of the third year following the introduction 
by Portugal of patentability for such products.

SUMMARY ANNEX
COMMISSION PROPOSALS
(a) Portugal shouLd undertake to make, upon accession, Portuguese patent 
law compatible with the principles of free movement of goods and with 
the level of protection of industrial property achieved in the 
Community. In particular, Portugal must rescind the provisions of 
Article 8 of Decree No 2718 of 18 January 1984, whereby the proprietor 
of a patent issued in PortugaL must, in order to enjoy the exclusive 
right conferred by that patent, manufacture on Portuguese territory 
the patented product or the product obtained using a patented process.
To that end close collaboration will be established between the 
Commission departments and the Portuguese authorities.
<b> Portugal must also introduce into its national legislation a provision 
on reversal of the burden of proof corresponding to Article 75 of 
the Luxembourg Convention, This provision must apply upon accession 
with regard to new process patents filed after the date of accession. 
For patents filed before that date, this provision must apply by 
7 October 1992 at the latest.
<c) Portugal will accede to the Munich European Patent Convention 
within the period required in order to enable it to invoke 
Article 167 of that Convention in respect of foodstuffs, chemicals 
and pharmaceuticals.
In this context, given fulfilment of the undertaking given by 
Portugal under (a) above, the Member States of the Community, 
as Contracting States to the Munich Convention, undertake to do 
their utmost to ensure, on the basis of the request, provided 
for in Article 167 of said Convention, to be presented by 
Portugal, that the validity of the reservation provided for in 
the article in question is extended beyond 7 October 1987

[
for the maximum period provided for in the Munich Convention.
If extension of the above-mentioned reservation could not be 
obtained, Portugal could invoke Article 174 of the 
Munich Convention, it being understood that it must at any event 
accede to the Convention by 7 October 1992 at the latest,
<d) Upon expiry of the derogation provided for above, Portugal must 
accede to the Luxembourg Community Patent Convention.
Portugal will be able to invoke ArticLe 95(4) of that Convention 
in order to make such purely technical adjustments as are 
necessary owing to its accession to said Convention, it being, 
however, understood that this cannot delay Portugal's accession 
to the Luxembourg Convention beyond the above-mentioned date.
(e) Lastly, there wilL be inserted in the instruments of accession 
a provision whereby, by way of temporary derogation from the 
provisions of the EEC Treaty, the proprietor of or party 
entitled to a patent in respect of a chemical, pharmaceutical or 
food product filed in a Member State at a time when a product 
patent could not be obtained in Portugal for the product in 
question, may invoke the right conferred by that patent in order 
to prevent the product in question from being imported and 
marketed in the Member State(s) in which that product is 
protected by a patent, even if the product in question has been 
put on to the market in Portugal for the first time by himself 
or with his consent.
This right may be invoked in respect of chemicals, pharmaceuticals 
and foodstuffs until the end of the third year following the 
introduction by Portugal of patentability in respect of such 
products.