Source: EURLEX
Language: en
Format: md

[**Avis juridique important**](../../../editorial/legal_notice.htm)

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# 61980J0187

**Judgment of the Court of 14 July 1981. - Merck & Co. Inc. v Stephar BV and Petrus Stephanus Exler. - Reference for a preliminary ruling: Arrondissementsrechtbank Rotterdam - Netherlands. - Patents - Pharmaceutical products. - Case 187/80.** 
  
*European Court reports 1981 Page 02063  
 Swedish special edition Page 00187  
 Finnish special edition Page 00197  
 Spanish special edition Page 00583*

  

[Summary](#SM)  
[Parties](#I1)  
[Subject of the case](#I2)  
[Grounds](#MO)  
[Decision on costs](#CO)  
[Operative part](#DI)

## Keywords

  
*FREE MOVEMENT OF GOODS - INDUSTRIAL AND COMMERCIAL PROPERTY - PATENT RIGHT - PROTECTION - LIMITS - PRODUCT PROTECTED IN ONE MEMBER STATE MARKETED BY THE PROPRIETOR OF THE PATENT IN ANOTHER MEMBER STATE WHERE THE PRODUCT IS NOT PATENTABLE - OBJECTION BY PROPRIETOR TO IMPORTATION OF PRODUCT INTO THE MEMBER STATE WHERE PROTECTION EXISTS - NOT PERMISSIBLE

( EEC TREATY , ART . 36 )*

## Summary

  
*THE SUBSTANCE OF A PATENT RIGHT LIES ESSENTIALLY IN ACCORDING THE INVENTOR AN EXCLUSIVE RIGHT OF FIRST PLACING THE PRODUCT ON THE MARKET ; THAT RIGHT ENABLES THE INVENTOR , BY ALLOWING HIM A MONOPOLY IN EXPLOITING HIS PRODUCT , TO OBTAIN THE REWARD FOR HIS CREATIVE EFFORT WITHOUT , HOWEVER , GUARANTEEING THAT HE WILL OBTAIN SUCH A REWARD IN ALL CIRCUMSTANCES . ALTHOUGH IT IS FOR THE PROPRIETOR OF THE PATENT TO DECIDE , IN THE LIGHT OF ALL THE CIRCUMSTANCES , UNDER WHAT CONDITIONS HE WILL SELL HIS PRODUCT , AND TO MARKET IT IN A MEMBER STATE WHERE THE LAW DOES NOT PROVIDE PATENT PROTECTION FOR THE PRODUCT IN QUESTION , HE MUST THEN ACCEPT THE CONSEQUENCES OF HIS CHOICE AS REGARDS THE FREE MOVEMENT OF THE PRODUCT WITHIN THE COMMON MARKET , WHICH IS A FUNDAMENTAL PRINCIPLE FORMING PART OF THE LEGAL AND ECONOMIC CIRCUMSTANCES WHICH MUST BE TAKEN INTO ACCOUNT BY THE PROPRIETOR OF THE PATENT IN DETERMINING THE MANNER IN WHICH HIS EXCLUSIVE RIGHT WILL BE EXERCISED .

ACCORDINGLY , THE RULES OF THE EEC TREATY CONCERNING THE FREE MOVEMENT OF GOODS , INCLUDING THE PROVISIONS OF ARTICLE 36 , MUST BE INTERPRETED AS PREVENTING THE PROPRIETOR OF A PATENT FOR A MEDICINAL PREPARATION WHO SELLS IT IN ONE MEMBER STATE WHERE PATENT PROTECTION EXISTS , AND THEN MARKETS IT HIMSELF IN ANOTHER MEMBER STATE WHERE THERE IS NO SUCH PROTECTION , FROM AVAILING HIMSELF OF THE RIGHT CONFERRED BY THE LEGISLATION OF THE FIRST MEMBER STATE TO PREVENT THE MARKETING IN THAT STATE OF THE SAID PREPARATION IMPORTED FROM THE OTHER MEMBER STATE .*

## Parties

[Top](#document1)