CJEU Explains SPCs for Active Ingredients Found in Marketing Authorizations But Not Specifically Claimed in Patents
Three more Supplementary Protection Certificate ("SPC") cases were decided by the Court of Justice of the European Union ("CJEU") recently underlining and further enhancing the decisions in the two cases Georgetown and Medeva, which we previously reported on here.
In Case C 630/10, the University of Queensland owned three patents but had been unable to get any SPCs at the United Kingdom's Patent Office. The UK Patent Office rejected all the SPC applications submitted, either because: (1) the combination of active ingredients in question were not claimed in the patents concerned or (2) the Marketing Authorizations ("MAs") provided in support of the SPC applications related to medicinal products containing other active ingredients that were not claimed in any of those patents, even though the applications related to individual active ingredients that were claimed in the patents concerned. The patents related to methods of production of papillomavirus-like particles ("VLPs") of the Human papillomavirus ("HPV") Type 6 ("HPV 6") and Type 11 ("HPV 11"), the VLPs per se and vaccines produced from or comprising VLPs.
As in Medeva, the first set of questions were answered by first restating that Article 3(a) of the regulation precludes the grant of an SPC relating to active ingredients that are not specified in the wording of the claims of the basic patent (Medeva, paragraph 25). Next, the CJEU stated that Article 3(a) of Regulation No. 469/2009 must be interpreted to preclude the competent industrial property office of a Member State from granting a SPC relating to active ingredients that are not identified in the wording of the claims of the basic patent relied on in support of the SPC application.