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

Sunday 16 February 2014

The mystery of the Merck Canada reference: can anyone explain?

On 28 January 2014 The SPC Blog posted an item, "A mystery reference from Portugal: can anyone help?", here, on a reference to the Court of Justice of the European Union which most of us knew nothing about. The plot thickens, in that there has now been a mystery ruling. According to a newsflash from the Lisbon, Portugal law firm of Baptista, Monteverde & Associados, the case is C-555/13 Merck Canada and the question referred to the CJEU is this:
“May Article 13 of Regulation 469/2009 be interpreted as permitting, by means of a supplementary protection certificate for medicinal products, the period for exclusive exploitation of the patented invention to be more than fifteen years from the date of the first authorization to place the medicinal product in question on the market within the Community (not including the extension provided for in Article 13(3) of that regulation)?".
Last Thursday, 13 February, the CJEU apparently ruled as follows, according to Baptista, Monteverde & Associados:
“Article 13 of Regulation 469/2009 ..., read in conjunction with recital 9 of that regulation, must be interpreted as meaning that it opposes that the holder of a patent and of a supplementary protection certificate may invoke the whole duration of the said certificate, applying Article 13 in a situation where, due to the said duration, the said holder would benefit from a period of exclusive exploitation of an active ingredient of more than fifteen years from the date of the first marketing authorization within the Community, of the medicinal product consisting of the said active ingredient or containing it.”
This by no means clears up the mystery of this case.  Can anyone explain the following?

First, if you look at the Curia diary for 13 February, you will find lots of cases that received the attention of the CJEU -- but Case C-555/13 is not among those listed.

Secondly, if you conduct a case search for Case C-555/13 you will find it marked "Case in Progress", there being no sign of a judgment.

Thirdly, the case -- according to Curia -- was only filed in October of last year, and notice of it having been filed was published in the Official Journal this January.

Is it possible for a reference to reach a ruling in just a few short winter months, with no apparent hearing? Can anyone explain what has happened?

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