"The Court of Appeal has decided in a case concerning the product irbesartan + HCTZ that the CJEU rulings in Medeva and Georgetown should be read as "one SPC per patent", not "one SPC per product per patent" (see (i) this summary on the IE-Forum blog, and (ii) the full judgment which is reasonably readable with Google Translate).
The Court notes that, even if this restriction set by the CJEU would not be in agreement with the SPC Regulation, this does not automatically imply that the restriction does not apply.
The Court points out that the CJEU has on other occasions imposed restrictions on IP rights which cannot (directly) be found in the applicable guidelines or regulations.
The Court then explains that this restriction may be in agreement with the Regulation if the term 'product' is interpreted narrowly as the ' invented basic substance'.Note that this was a case for injunctive relief, adds Martijn, not a decision on the merits.
This all came in on the eve of the oral hearing last week in Luxembourg in the Georgetown, Eli Lilly and Actavis cases.
Most of the parties involved (like most if not all national patent offices in the past) have have rejected the "one SPC per patent" interpretation, but I do agree with the Court of Appeal that this is what the CJEU meant in Medeva and Georgetown and, in my opinion, the Court of Appeal does a most admirable job under the circumstances in explaining how this could be in agreement with the Regulation since the CJEU does not provide any argumentation in their own judgements, hence the mess we're in".
Thanks so much, Martijn, for keeping us up to date!