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| Given the length of time it has taken to put together a unitary patent scheme with a unified court, this logo would seem most appropriate for the venture |
"Do any readers of The SPC Blog have any comments or views on Article 3(b) of the Unified Court Agreement?Can any reader advise?
In Article 3(b) of the Unified Patent Court Agreement concerning the jurisdiction of the court over European patents, there is a reference to “supplementary protection certificate issued for a patent”. Article 2(7) of the Agreement indicates that “patent” means a European patent and a European patent with unitary effect.
My observation arises as follows:
An SPC is a national property right granted by a national patent office – unlike the Unified European patent or the regular European patent granted by the EPO. Often an SPC will be based on a European patent granted by the EPO -- or presumably a Unitary European patent in future – but not always, since national patents can be used also as the basis for an SPC.
Although the SPC is a creation of EU law and its inclusion in the Court Agreement has some logic, it still looks a bit strange to have a national property right bundled up in the supranational Unified Patent Court Agreement. On the other hand, maybe it does make sense since standard European patents (which are in effect national property rights too, after grant and validation) will fall under the Court’s jurisdiction.
I’m still left wondering though. Maybe I missed something in all the excitement recently (in particular the hoo-hah over Articles 6 to 8).
Does this mean that the Unified Patent Court will get jurisdiction over existing or future SPCs based on national patents? Or maybe the Agreement is meant to refer only to SPCs granted on European patents but not national patents?
Does this further mean that the Court could get to rule on the validity of such SPCs (based on national patents) but not where the validity of the national patent is reserved for the national court? (is there some additional unintended bifurcation here?)"
1 comment:
C-442/11 Novartis (order of the Court) is out on curia!:
"Articles 4 and 5 of Regulation (EC) No 469/2009 of the European Parliament and of the Council of 6 May 2009 concerning the supplementary protection certificate for medicinal products must be interpreted as meaning that, where a ‘product’ consisting of an active ingredient was protected by a basic patent and the holder of that patent was able to rely on the protection conferred by that patent for that ‘product’ in order to oppose the marketing of a medicinal product containing that active ingredient in combination with one or more other active ingredients, a supplementary protection certificate granted for that ‘product’ enables its holder, after the basic patent has expired, to oppose the marketing by a third party of a medicinal product containing that product for a use of the ‘product’, as a medicinal product, which was authorised before that certificate expired."
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