"One (of many) of the causes of consternation arising from Advocate-General Trstenjak’s Opinion in the Medeva reference (discussed many times in earlier posts on this weblog) was her contention (in para 102) that:
“according to the Court’s case-law, only one supplementary protection certificate may be granted for each basic patent”.This has caused more than a few squawks of concern by commentators across the continent (and indeed beyond), not least on this blog.
A-G Trstenjak attributes this “case-law” to paragraph 28 of the ECJ Judgment in the Biogen case, from which she has taken a literal quote of the final words of that paragraph. As the world and his wife have since pointed out, however, this is not consistent with past and current practice around Europe (and many examples of multiple SPCs based on single patents have been brought forward).
“It is nowhere stated that a patent can be the subject of only one certificate, or of a certificate only in respect of one medicinal product, as the same patent may be used for widely differing medicinal products.”Hurrumph! Don’t these Advocates-General talk to each other? Perhaps Angela Merkel is right – perhaps peace in Europe should not be taken for granted".
A niche blog dedicated to the issues that arise when supplementary protection certificates (SPCs) extend patents beyond their normal life -- and to the respective positions of patent owners, investors, competitors and consumers. The blog also addresses wider issues that may be of interest or use to those involved in the extension of patent rights. You can email The SPC Blog here