Supplementary protection certificates 2: how must a product be identified in a patent for the purpose of SPC protection?

February 2018

Over the years, references from the European member state courts to the CJEU on matters of interpretation of the SPC Regulation 469 / 2009 tend to go in fits and starts. There was such a period in which numerous references were made to the CJEU at the beginning of 2017, and then again as the year ended.

The purpose of this two part article is to round-up what the questions being referred are, and why. Most of these concern two things: exactly what products can be protected by an SPC; and how exactly they must be specified in the underlying 'basic patent in force'. Many of the current referrals to the CJEU stem from earlier rulings which have been less than clarifying. At least in part as a result, differences of approach to the SPC Regulation, and the rulings of the CJEU, are still occurring in the national courts.

This, Part 2, considers how a product must be identified by a basic patent in force, under Article 3(a), in order for an SPC to be permitted.

Read the full article.


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Paul England

Paul is a senior associate and senior professional support lawyer in the IP/IT group, specialising in patents.

"The differing national approaches to Article 3(a) and the CJEU ruling in Eli Lilly have come to a head in further references to the CJEU"