Many thanks to Monika Heinemann (Abitz & Partner) and Andreas von Falck and Miriam Gundt (Hogan Lovells LLP) for passing this on.
Thursday, 9 June 2011
Opinion of the AG for C-125/10 is out!
The opinion is out and is available here (but not in English yet). In short, the AG is in favour of granting a 'negative' SPC even if the period between the date on which the application for a basic patent was lodged and the date of the first authorisation to place the product on the market in the community is less than five years.
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Interestingly, article 7(4) of Reg 469/2009 mentions that "The application for an extension of the duration of a certificate already granted shall be lodged not later than two years before the expiry of the certificate".
However if a SPC has a negative term, it cannot be in force and a fortiori it cannot expire either.
In cases where the paediatric extension cannot be applied for upon filing the SPC application (or when the application is pending) how would we manage the legal situation?
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