The final version of the Court of Appeal's "mystery decision" in E I du Pont Nemours & Co v United Kingdom Intellectual Property Office [2009] EWCA Civ 966 , which was handed down in draft form on 19 September, has at last been made generally available today. This decision reverses that of John Baldwin QC, sitting as a High Court judge (see The SPC Blog here) in which he upheld the Intellectual Property Office's decision to refuse to grant a paedriatric extension to the term of an SPC for Losartan.At para 59 Lord Justice Jacob (with whom the other appellate judges agreed) explains:
"We indicated at the conclusion of the oral hearing that the appeal would be allowed. This was necessary in order that the Patent Office could extend the SPC before it expired. These are my reasons for that decision. They are largely the same (though I fear expressed at much greater length) as those of the Dutch Patent office [noted here on the SPC Blog] which, by its letter of 2nd June, extended the corresponding Dutch SPC".The SPC Blog welcomes further comment on this very full decision, and may provide some additional comments of its own in due course.
3 comments:
The take home message from Jacob’s judgment is that you don’t have to meet the requirements for a paediatric extension at the time you file your application. Du Pont was thus granted a paediatric extension even though two key events (authorization in all EU states and publication of a marketing authorization with an Art. 28(3) statement) took place after the paediatric extension application had been filed and after the deadline for filing the paediatric extension application had passed.
Jacob's ladder
So much for certainty for third parties. The first outing for the Paediatric Regulation has been a real mess, as charted on this blog throughout the course of the summer. Uncertain legislation being interpreted in different ways by different patent offices, leading to confusion and 11th-hour goal-post shifting.
What is Anonymous at 13 October 2009 18:43 talking about? The whole point in this decision is that it brings the UK into line with what happened elsewhere, increasing uniformity across the Community.
And, by the way, it's impossible to write a Regulation that doesn't require judicial clarification (although I admit that Reg. 1768/92 was one hell of a shocker).
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