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

Friday 2 October 2009

Losartan and third party oppositions in the Netherlands

As most seasoned SPC Blog readers will recall, third party Actavis lodged an objection with the Netherlands Patent Office against the decision by the Netherlands Patent Office to grant the extension of the term of the supplementary protection certificate to Dupont (reported here http://thespcblog.blogspot.com/2009/06/losartan-decision-in-netherlands.html).
The Netherlands Patent Office declared the petition inadmissible in view of article 19.2 of Reg. 469/2009 which rules out an opposition procedure against the granting of a certificate.

Actavis appealed at the Administrative chamber of the Court of the Hague, arguing in particular that article 19.2 only applies to the granting of certificates, not to the awarding of term extensions.

The Court has rejected this appeal (a copy of the decision is available here): There is nothing in the documentation concerning the Paediatric Regulation to suggest that the legislator found an opposition procedure against the granting of term extensions desirable, but an opposition procedure against the granting of certificates not. Furthermore article 16.2 of Reg. 469/2009 stipulates that any person may submit an application for revocation of the extension of the duration to the body responsible under national law for the revocation of the corresponding basic patent. That body under Dutch patent law is the Court of The Hague, section Civil, department Intellectual Property.

Unlike in the Netherlands, in some countries not only the courts but also the national patent offices have the power under their national patent law to revoke patents. This leads to a bit of a contradiction between article 16.2 and 19.2 (and also 15.2 and 19.2). We invite the Blog readers to comment on how these countries deal with such third party oppositions.

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