Dutch Council of State upholds Syngenta's "wrong date" appeal

Writing on behalf of himself and his Netherlands CMS colleagues Edmon Oude Elferink, Conny Delissen and Willem Hoorneman, Rogier de Vrey brings news of a recent judgment delivered by the Dutch Council of State on 18 February 2015 in what he describes as a very interesting SPC case [so far as this blogger is concerned, all SPC cases are interesting, and he can even find room in his heart for those decisions on the Special Mechanism ...]. The Council of State is the highest general administrative court in the Netherlands, so its pronouncements deserve our attention. Writes Rogier

This case basically concerns the issue whether it is possible to rectify – in this case extend – the term of protection of an SPC, after it has been granted, if the term of protection of the certificate is incorrectly calculated.

In this case, the Netherlands Patent Office ("NPO") granted Syngenta an SPC on 9 December 2005 on the basis of a ('mono') Polish MA. It is now undisputed, after the University of Queensland judgment of the Court of Justice of the European Union (C-630/10), that the SPC was granted on the basis of the wrong MA. The NPO should have used the Finnish "combi-MA" for the calculation of the term of the SPC. As a result, the certificate was valid until 24 March 2014 while, had the Finnish "combi-MA" been used, the term of the certificate would have extended for more than 1½ years. 

On 3 September 2013, about eight years after the grant of the certificate, Syngenta asked the NPO to rectify the duration of the certificate. At the time of this request, the certificate was still in force. This request was denied by the NPO. The NPO also dismissed the notice of objection lodged by Syngenta to the NPO. The Court of The Hague subsequently dismissed the appeal brought by Syngenta against this decision of the NPO. Syngenta appealed this decision with the Administrative Jurisdiction Division of the Council of State, requesting the president to grant an interim injunction. This request for an interim injunction was rejected as well.

Council of State

In the proceedings on the matters before the Council of State, NPO asserted that there is no obligation to reconsider its decision to grant the certificate in 2005. Syngenta could have filed a notice of objection (after 9 December 2005) within the statutory period of 6 weeks, which it had not done. Article 17(2) of Regulation 1610/96 (the Regulation) does not, according to the NPO, lead to another result, as this clause allegedly only refers to the possibility of lodging an objection in accordance with national rules of procedure (the 6 weeks term). There were no new facts or changed circumstances that would require reconsideration of the original decision under administrative law (art. 4:6 of the Dutch Administrative Act). Finally, NPO asserted that rectifying the duration of the certificate could affect the interests of third parties.

Syngenta argued – in brief - that the interpretation of NPO of Article 17(2) of the Regulation does not comply with the mandatory and supranational nature of Regulation 1610/96, the general aim and purpose of this Regulation and the principle of Loyalty in EU Law (Article 4 (3) TEU). The correction mechanism introduced in Article 17(2) would be meaningless if invoking this Article would be subject to a national appeal period of 6 weeks. Article 17(2) was inserted (at a later stage) in the Regulation as an option for appeal, separate from the option provided by Article 17(1). Moreover, Article 17(2) should be interpreted broadly. The fact that in this case the incorrect calculation of the duration of the certificate is not the result of an error in the entry in the application of the date of the first MA, but the result of the use of an incorrect MA, can not preclude application of Article 17 (2).

The Council of State (on the merits) was convinced by the arguments of Syngenta and upheld the appeal lodged by Syngenta. The Council of State ruled that the duration of the certificate granted to Syngenta will be extended in the sense that the expiry date of the certificate will be set at 18 December 2015 and ordered NPO to compensate Syngenta for the costs of the proceedings.

In particular, this broad interpretation of Article 17(2) and the ability to basically at anytime request rectification under Article 17(2), is groundbreaking and has a potential impact on the position of SPC owners. To our knowledge, the judgment is the first of its kind in the European Union. We are very pleased with the spectacular result.

Rogier has helpfully furnished The SPC Blog with an English translation of this decision, which you can read here or download here