SPCs in Guernsey and Jersey -- an answer too good to miss!

Following this morning's post on the position of SPCs in Guernsey and Jersey, The SPC Blog has received this terrific response from Louise Audhlam-Gardiner (Lysaght & Co, right):

"I can answer the question about the registrability of SPCs in Jersey and Guernsey…………to say that unfortunately there is no definite answer! 

In Jersey, we have certainly recorded the existence of a UK SPC at the Judicial Greffe before. However, the Greffe indicated in those cases that it could give no undertaking as to the efficacy of the certificate. As you may be aware, there are certain deficiencies in the Patents (Jersey) Law, 1957. One such deficiency is that, arguably, the 1958 Law does not provide for supplementary protection, nor does it recognise the procedure adopted by the Greffe in issuing an SPC certificate. 

We expect that the same situation applies in Guernsey - it is likely that the Court would agree to record the presence of a UK SPC and even issue a certificate of some sort, but the enforcement of any rights afforded by such a certificate would not be clear. 

The question of the registrability of SPCs in the reregistration jurisdictions has come up previously, and indeed we have specifically written to the Registries in all such jurisdictions when the SPC Regulations were first introduced in the UK pursuant to European Council Regulation No. 1768/92 in 1993. As expected, we did not receive many responses, and we do not expect that they understand the issues involved.We have also written more recently to the legislators in certain jurisdictions, e.g. Guernsey (a new  Patent Law is currently being drafted there) to raise similar issues again, but to date we have not received satisfactory answers.

However, the Patent Laws of most of these jurisdictions do provide that the privileges, rights and conditions conferred to and imposed by a Certificate of Registration are, mutatis mutandis, those conferred or imposed by the base patent and such privileges, etc., date from the date of Fthe base patent, and remain in force during the period of subsistence thereof. Therefore, whilst we do not believe that the separate right of an SPC is explicitly covered by such provisions, and presumably the local laws were enacted without any consideration towards or knowledge of such SPC rights in these jurisdictions, the extension of term of a UK patent by virtue of the grant of an SPC may well, by implication, automatically apply to reregistration patents based on that UK patent in at least some of these jurisdictions. 

Notwithstanding the above, and in view of the lack of understanding of SPCs in these jurisdictions, an SPC may also be specifically recognized by the Registries in certain of these jurisdictions if it has firstly been recorded at the UK IPO, and indeed, we have done so with success on previous occasions in several such jurisdictions (e.g. Gibraltar, Fiji, Montserrat). 

However, again, we are not certain that the registration of such SPCs would be enforceable if ever challenged by a third party. 

I apologize for the uncertainty of my comments, but as you will appreciate, this subject is somewhat obscure and unclear in view of the lack of understanding of the Registries in these jurisdictions regarding SPCs".

.Thanks so much, Louise, this is really helpful.