Pharmaceutical patents - common issues
UK
UK national patents are granted by the UK Intellectual Property Office (UKIPO) and are subject to the Patents Act 1977 ("Patents Act"). Unlike other countries in Europe, the UK is a common law jurisdiction so decisions of the courts are also important in governing how the Patents Act is interpreted. The UK is also party to the European Patent Convention 1973 ("EPC"), as amended by the EPC 2000. As well as providing substantive laws, the EPC provides a single route to the grant of a European patent by the European Patent Office ("EPO").
Other European legislation also applies to aspects of patent law. For instance, in the pharmaceuticals sector, patent term extensions are available in the form of a supplementary protection certificate ("SPC"). These extensions are granted under Regulation (EC) No 469/2009 ("SPC Regulation"). Numerous references have been made to the Court of Justice of the EU as to the correct interpretation of the SPC Regulations relating to questions as to the validity and infringement of an SPC. These are probably the most common issues currently arising.
Germany
German national patents are granted by the German Patent and Trademark Office and are subject to the German Patents Act. Germany is also a party to the EPC so the EPC's current wording, EPC 2000, applies.
As with the UK, the SPC Regulation applies in Germany and their interpretation in the German courts has given rise to many references to the Court of Justice of the EU. This is probably the most common issue arising in the pharmaceutical sector at this time.
Austria
Austrian patents are granted by the Austrian Patent Office according to the Austrian Patent Act 1970 and subsequent amendments. Austria is also a party to the EPC 2000 and, as a member state of the European Union, also subject to the SPC regulation (EC) No 469/2009 and the regulation (EC) No 1901/2006 on medicinal products for paediatric use.
If you have any questions on this article or would like to propose a subject to be addressed by Synapse please contact us.
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Matthew Royle
Matthew is a senior associate in the Intellectual Property department based in our London office.
