As easy as (a), (b) -- but maybe not (c) and (d)?

Following yesterday's post, which featured De Brauw's handy table that summarised the current position now that the Court of Justice has given a whole battery of judgments and orders regarding SPC subject matter, The SPC Blog has now heard from John Miles (Potter Clarkson). John -- who was the agent for Georgetown University et al. in Case C-422/10 -- makes reference to his own firm's newsletter coverage of the Yeda, Queensland and Daiichi cases (you can find it here, under the heading “Supplementary Protection Certificates: Some further twists”) and adds:

"You will see that we have speculated that Yeda could be interpreted to suggest that explicit naming of active ingredients in the claims is not necessary to satisfy the “specified in the wording of the claim” test that comes from Medeva. We also point to the difference in wording between Medeva (“specified”) and the other cases (“identified”) but conclude that no difference is meant".

Regarding the De Brauw table, he adds:

"this only takes account of the situation under Articles 3(a) and 3(b), and not 3(c) and 3(d). It is not entirely clear that all of the SPC applications necessarily satisfy Articles 3(c) and 3(d) even if they do satisfy Articles 3(a) and 3(b), and it will be interesting to see if and how the English courts consider this point".

What do other readers think?

After the recent batch of SPC rulings, where are we?

The SPC Blog thanks Tjibbe Douma (De Brauw Blackstone Westbroek N.V.) for drawing its attention to a neat explanatory diagram which appeared in that firm's Legal Alert of December 2011 and which represents, in schematic form, the position which follows the recent batch of Court of Justice rulings and orders that has clarified the status of SPCs relating to product-by-process claims and combination products.

Summary of the present situation for easy reference: what do the decisions mean in practice

CASE	Basic Patent Claims:	MA in place for:	SPC
Medeva	Combination A+B	A +B +C+D multi-disease vaccine	A+B
Yeda	Combination A+B	A (+C)	No SPC possible
Queensland Several basic patents	1.     A+B 2.     C 3.     D	A+B+C+D	1.     A+B (based on patent 1) 2.     C (based on patent 2) 3.     D (based on patent 3)
Queensland Product through process	A claimed in the wording as (in)direct product of the process claim	A (+B + C)	A
Queensland a contrario Product through process	A product of process but A not specified in the wording of the claim	A (+B + C)	No SPC possible
Daiichi	A	A+B combination therapy	A

Details of these cases can be found on The SPC Blog and/or on the De Brauw website's Legal Alerts and Newsletters (here).