In the Hussar case (C-229/09) the CJEU concluded that it is possible to obtain an SPC for a plant protection product on the basis of a provisional marketing approval granted in accordance with Art. 8(1) of directive 91/414 EPC (which requires a level of testing equivalent to that necessary in order to obtain a definite marketing approval issued under the conditions laid down in Art. 4 of that directive).
Due to the considerable legal uncertainty prior to Hussar (which was further compounded by conflicting information provided by the GPTO at that time), a number of SPC applications had been filed in Germany on the basis of a so-called “emergency approval” granted in accordance with Art. 8(4), (which unlike the provisional or definite approval is issued for a limited period not exceeding 120 days).
In the case at hand (SPC filing number DE 12 2004 000 021.0) , an SPC application was filed within six months of the issue of such an emergency approval, which by this time had already expired. The provisional Art 8(1) approval issued shortly after the filing date of the SPC application, followed by the subsequent definite approval in accordance with Art. 4.
Oral proceedings were held in December before the Federal Patent Court, which is evidently now minded to refer the case to the CJEU in February 2012.
While the exact wording of the questions to be referred to CJEU is not yet available, it would appear that the central issues are as follows:
1. For the purpose of the application of Article 3(1)(b) of Regulation No 1610/96, must account be taken exclusively of a Marketing Authorisation under Article 4 or 8(1) of Directive 91/414 EEC or can a certificate also be issued pursuant to a Marketing Authorisation which has been granted on the basis of Article 8(4) of Directive 91/414 EEC?
2. For the purpose of the application of Article 3(1)(b) of Regulation No 1610/96, must the authorisation to place the product on the market still be valid at the application date of the SPC?The SPC blog will let you know if and when we hear more....