Dorothea and Norbert's comments are strongly influenced by the German perspective about the meaning of the "subject matter of the patent" and will be published in the September issue of the Mitteilung der deutschen Patentanwälte.
Thursday, 11 August 2011
More comments to the AG opinion in Medeva
Dorothea von Renesse and Norbert Schwenk (König, Syznka, Tilman, von Renesse, Düsseldorf) have kindly provided their input (here) to The SPC Blog's call for thoughts to Paul Inman's and Herwig von Morze's comments last week on Medeva and the interpretation of EU law.
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2 comments:
A sensible analysis. I think the comment that "it is Articles 3(c) and 3(d) of the Regulation which are the key provisions for an unbiased and fair handling of the Regulation - and not Article 3(a)" is spot on.
The sooner that originators realise that they are not going to get the broad interpretation of Art 3(a) that they want without appropriate safeguards also being read into Art 3(c) and 3(d) the better. At present there is a risk that their unrealistic arguments in favour of an interpretation which allows evergreening through later combi-product SPCs will drive the CJEU towards an unworkable and perverse test for Art 3(a).
I agree. The "infringement test" argument has been lost in the national courts of many countries (UK, Spain, Netherlands etc. etc.) and now seems to be falling on deaf ears at the CJ, despite the fact that so many practitioners say it is a simple test that everyone understands. One problem I have always had with it is how to apply it to second medical use claims - how can a "product" (i.e. an active ingredient per se, not the complete medicinal product) infringe a use claim? The same goes for pharmaceutical composition claims and other “applications” of the product in the Article 1(c) sense. The infringement test (if indeed there is only form of it) must be more complicated than its supporters let on.
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