Last week the Swedish Patent Office announced a change in how it processes requests for re-examination or rectification of the duration of a Supplementary Protection Certificate (SPC).
The background to the decision of the Swedish Patent Office is the ruling of the Swedish Patent and Market Court of Appeal on October 4, 2017 stating that re-examination of the duration of an SPC is possible according to general administrative principles if the term of the SPC has not yet commenced. This decision was appealed by inter alia the Swedish Patent Office which asked for leave at the Swedish Supreme Court.
On December 20, the CJEU ruled in case C-492/16 (Incyte) that the holder of a SPC may, under Article 18 of Regulation No. 469/2009, file an appeal for rectification of the duration of said SPC, provided that the term of said certificate has not expired.
On February 19, 2018 the Supreme Court decided not to grant leave to the appealed decisions and that the decisions of the Patent and Market Court are upheld.
As a consequence, the Swedish Patent Office will re-examine the decisions concerned by the ruling of the Patent and Market Court of Appeal. Further, any new request for re-examination or rectification of the duration of a SPC will be implemented in accordance with the CJEU case C-492/16 and said court’s interpretation of Article 18 of Regulation No. 469/2009.