PATENTS | AG Emiliou on the conditions for granting a supplementary protection certificate

On 6 June 2024, the Advocate General Emiliou issued his opinion in joined cases C‑119/22 and C‑149/22 concerning the conditions for granting a supplementary protection certificate (“SPC”) for medicinal products governed by Regulation (EC) No 469/2009 of 6 May 2009. The Advocate General argued that to fall within the scope of a “product protected by a basic patent” provided under Article 3(a) of Regulation No. 429/2009, the product should (a) be expressly mentioned or at least “specifically identifiable” in the claims and (b) fall within the scope of the invention claimed by the relevant patent. The Advocate General also suggested that Article 3(c) of Regulation No. 469/2009 should not preclude the granting of an SPC for a combination of active ingredients where a previous SPC had been granted for one of those ingredients.

Newsletter n. 98 – July 2024