Post-Medeva CJEU references on the horizon, this time from the Netherlands

From The SPC Blog's friend Margot Kokke (De Brauw Blackstone Westbroek N.V., Amsterdam) comes news that a Dutch District Court is proposing to refer some questions to the Court of Justice of the European Union in Dutch Georgetown and Queensland cases regarding the continuing saga of "one SPC per patent" (it seems that not all national intellectual property offices are continuing the practice of granting "one SPC per product per patent" as they used to do in the days before before Medeva.

The Dutch court in question here is the District Court of The Hague, which wants to obtain preliminary rulings that clarify the "one SPC per patent" rule mentioned in paragraphs 41 of Medeva (C-322/10) and 34 of Georgetown (C-422/10) in two parallel decisions: (Dutch) Georgetown and (Dutch) Queensland.

Initially the Dutch IPO refused the requested SPCs, basing its decision on Article 3(b) of the SPC Regulation but, once it was clarified in Medeva that an SPC for a single product can be granted based on a marketing authorisation containing that product together with other active ingredients, this was no longer an issue. The IPO subsequently refused to grant the SPCs based on Article 3(c) of the Regulation: in both cases another SPC (Queensland) or SPCs (Georgetown) was/were granted based on the same patent. The Court doubts whether the fact that Queensland renounced its right to the other SPC makes a difference as it is not sure whether the renunciation of an SPC has retroactive effect. The most important questions are:

* Does Article 3(c), in the situation where (the claims of) a basic patent claims several products, preclude the grant to the owner of the patent of an SPC for every product that is claimed?

* If the answer to this questions if affirmative, where an SPC is granted for one product but was renounced, does this preclude the grant of an SPC for another product claimed by the same basic patent?

* If it should be relevant that the renunciation has retroactive effect, is this governed by Article 14 of the SPC Regulation or by national law? In the latter case, does renunciation of an SPC have retroactive effect?

The parties have six weeks to give their opinion on the proposed questions, before the Court will formulate its final referral.