Non-payment of Cetrorelix fee on time fatal for SPC

On 20 July 2010 the United Kingdom's Intellectual Property Office issued a decision in Case BL0/252/11 The Administrators of the Tulane Education Fund, on the consequences of the non-payment of the fee for bringing an SPC into effect. The official note of the case describes this decision thus:

"The applicant failed to pay the prescribed fee for bringing supplementary protection certificate SPC/GB/99/033 into effect within the prescribed period or within the period of six months following the end of the prescribed period. The applicant argued that a late payment of the fee should be allowed either as a correction of an irregularity under rule 107 [of the Patents Rules 2007], a reinstatement under section 20A [of the Patents Act 1977], or a restoration under section 28. The hearing officer found that there was no error, default or omission on the part of the Office that resulted in the failure to pay the SPC fee in time in order to bring the SPC into effect and therefore rule 107 did not give the comptroller discretion to allow the late payment. He also found that neither section 20A nor section 28 applied in the present circumstances. The SPC could not therefore be brought into effect".

The SPC in this instance was for “Cetrorelix and pharmaceutically acceptable salts thereof, including cetrorelixacetate”, protected by basic patent EP (UK) 0299402 entitled “LHRH antagonists, their manufacture and pharmaceutical compositions thereof”. The circumstances in which the applicant failed to make payment on time are explained in the decision of Mr B. Micklewright.