The CJEU continues to receive a steady stream of referrals relating to the scope of protection from Supplementary Protection Certificates (SPCs).
The decision in Neurim Pharmaceuticals was handed down in 2012, relating to SPCs for ‘second medical use’ patents. The CJEU clarified that it is possible to obtain an SPC based on a patent covering new medicinal (or plant protection) uses of products that have previously been granted a marketing authorisation for an entirely different use.
Further questions have also been referred to the CJEU, by both the UK and Dutch Courts. The questions to be considered in 2013 include a request for clarification of the meaning of ‘protected by a basic patent’ in the SPC Regulation - a point which, despite being considered in several earlier CJEU cases (particularly in the context of combination products) remains extremely opaque. Also referred was the question of whether more than one SPC can be granted for a single patent, if that patent has claims which cover more than one product.
Finally, the CJEU has also been asked to (re-)consider whether a Swiss marketing authorisation, which was automatically recognised in Liechtenstein, is capable of constituting the ‘first authorisation to place a product on the market’ within the meaning of the EU SPC Regulation.