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

Thursday, 10 December 2015

New CJEU referral - C572/15 - duration of an SPC issued under national law

In the Eurovision contest of CJEU SPC referrals it is maximum points to Estonia for the referral that is C-572/15, on the topic of Article 21 of Regulation 469/2009.   The two referred questions are below, with Q1 on the topic of the transitional provisions and Q2 raising the interesting issue of possible incompatibility with EU law in the event that Q1 is answered in the affirmative.... 

The following questions have been referred for a preliminary ruling:

  1. Must Article 21(2) of Regulation No 469/2009 of the European Parliament and of the Council of 6 May 2009 concerning the supplementary protection certificate for medicinal products (codified version) be interpreted as shortening the duration of a supplementary protection certificate issued in a Member State which was issued under national law before the accession of the State in question to the European Union and whose duration in relation to an active substance, as stated in the supplementary protection certificate, would be longer than 15 years from the time when the first marketing authorisation in the Union was granted for a medicinal product consisting of the active substance or containing it?

  1. If the answer to the first question is in the affirmative, is Article 21(2) of Regulation No 469/2009 of the European Parliament and of the Council of 6 May 2009 concerning the supplementary protection certificate for medicinal products (codified version) compatible with European Union law, in particular the general principles of European Union law on the protection of acquired rights, the principle of the prohibition of retroactive effect of law, and the Charter of Fundamental Rights of the European Union?

If you have any thoughts, the UKIPO has set a deadline of 22 December 2015 to send them in to policy@ipo.gov.uk.  


1 comment:

Helen Jones said...

The question seems to suggest that the old SPC law in Estonia was not consistent with Reg 469/2009, in that the term of protection could last longer than 15 y from first authorisation in the EU (perhaps where the EE MA was granted later). It occurs to me that if the answer to 1 is yes perhaps the parallel situation where a MA was granted earlier in a new acceding state than all existing EU states, then the SPCs in those states could be shortened, which could be a lot more significant.