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 16 September 2011

Novartis mystery case heads for ECJ: can anyone help?

According to the UK's IPO, Case C-442/11 Novartis AG v Actavis UK Limited is the latest SPC dispute to be referred to the Court of Justice for a preliminary ruling. According to the IPO, this case --  another reference from the High Court for England and Wales -- raises the following questions:
"Where a supplementary protection certificate has been granted for a product as defined by Regulation 469/2009 for an active ingredient, are the rights conferred by that certificate pursuant to Article 5 of the Regulation in respect of the subject matter as defined in Article 4 of the Regulation infringed:

i. by a medicinal product that contains that active ingredient (in this case valsartan) in combination with one or more other active ingredients (in this case hydrochlorothiazide); or

ii. only by a medicinal product that contains that active ingredient (in this case valsartan) as the sole active ingredient?"
This seems to be a bit of a mystery. Martijn de Lange (Netherlands Patent Office) has told The SPC Blog:
"I totally missed that reference and I can't find it on BAILII or with Google either. Maybe you could put it on the blog and possibly some reader may supply it". 
This blogger hasn't been able to find any reference to it on the Curia website either. Can anyone help?

nb If you were planning on submitting comments on this reference to the UK IPO so that the government can decide what, if any, position it wishes to take, the IPO's notice does not stipulate a deadline by which submissions must be made. Having said that, you would be well advised to email your comments here, if you have any, as soon as possible.

1 comment:

Anonymous said...

Didn't someone post an anonymous comment about this referral? Look down the right hand side of the screen.

Funny that the AG in Medeva/Georgetown felt able to opine on this Article 4/5 issue when these articles were not in issue in those cases. I wonder if the CJ will do the same, or whether it will wait to hear full arguments in this later referral.