CJEU Confirms Strict Interpretation Of Article 3(a) For SPCs

On 30 April 2020 the CJEU gave its ruling in C-650/17 (Royalty Pharma). The judgment, which is reviewed in detail below, confirms that SPC applications are allowable when the product is not explicitly recited in the claims. However, it is implied that the product will need to be disclosed to a high degree of specificity elsewhere in the patent.

The case was previously joined with C-114/18 (Sandoz and Hexal) because both referrals concern the interpretation of Article 3(a) of the SPC Regulation. Article 3(a) requires that:

"A[n SPC] shall be granted if...    the product is protected by a basic patent in force"

However, in December 2019 the referring UK court withdrew its request for a ruling in Sandoz and Hexal. Advocate General Hogan had by that point already issued his opinion on both referrals (see our discussion here), but the judgment of the full court is confined to the questions referred in Royalty Pharma.