More questions for the CJEU from the High Court

In two separate decisions handed down last Friday, Teva UK Limited & Ors v Gilead Sciences Inc [2017] EWHC 13 (Pat) and Abraxis Bioscience LLC v The Comptroller-General of Patents [2017] EWHC 14 (Pat), Mr Justice Arnold has decided to send more questions to the CJEU for a preliminary ruling.

In Teva UK Limited & Ors v Gilead Sciences Inc, at [95], Mr Justice Arnold repeats question 1 of the Actavis v Sanofi case:

"What are the criteria for deciding whether 'the product is protected by a basic patent in force' in Article 3(a) of the SPC Regulation?"

In Abraxis Bioscience LLC v The Comptroller-General of Patents, the question is (at [62]):

"Is Article 3(d) of the SPC Regulation to be interpreted as permitting the grant of an SPC where the marketing authorisation referred to in Article 3(b) is the first authorisation within the scope of the basic patent to place the product on the market as a medicinal product and where the product is a new formulation of an old active ingredient?"

More references, more gaps?

... unless it has been
caused by the CJEU

"Two gaps instead of one: the CJEU's effect on Supplementary Protection Certificate jurisprudence" is the title of the June 2014 Guest Editorial in the Journal of Intellectual Property Law & Practice (JIPLP), written by editorial board member and patent attorney Darren Smyth (EIP, London). In keeping with normal JIPLP practice, the full text of this editorial is posted on the journal's informal jiplp weblog, here.

Darren concludes:

"You have all the guidance from the CJEU you are going to get. Every referral you make will result in more “gaps”, not fewer, in the legislative framework. Decide some cases; aim for consistency; but if there happen to be some anomalies, well, it is better than spending the time, effort, and money on a referral that will simply make the issues more complex than they were to begin with".

Forthcoming attractions in Luxembourg

Not everything in the Grand Duchy is so quite and sedate:
have you tried the Luxembourg Grand Prix ...?

The Curia diary for the coming term has now published the first couple of weeks of impending cases before the Court of Justice of the European Union.  The SPC Blog has been tipped off by one of his anonymous but greatly respected regulars (thanks!) that, if anyone were thinking of taking a holiday in Luxembourg next month, he could do no better than to arrange to be there on Thursday 12 September, in time to enjoy the following fare:

Thursday 12/09/2013 09:30	Hearing C-443/12	Approximation of laws Actavis Group and Actavis Court of Justice - Third Chamber	EN
Thursday 12/09/2013 09:30	Hearing C-484/12	Approximation of laws Georgetown University Court of Justice - Third Chamber	NL
Thursday 12/09/2013 09:30	Hearing C-493/12	Approximation of laws Eli Lilly and Company Court of Justice - Third Chamber	EN

If any SPC Blog devotees happen to be there and feel tempted to let us have a report on how these hearings go, we'd be thrilled to share it with our readers.