Further Referral To The CJEU On Combi-SPCs: Concerning Article 3(a) And Article 3(c)

Just over 3 months after we reported a referral from the Finnish Market Court concerning Article 3(c) for combination products (see our news item, here), the Irish Supreme Court has now made its own, similar referral. Both the Finnish and Irish referrals involve Merck Sharp & Dohme Corp as the SPC holder, although the Irish case is concerned with a different product (Inegy^® - a combination of ezetimibe and simvastatin), patent (EP0720599), and respondent (Clonmel Healthcare Limited).

In essence, and similar to their colleagues in Finland, the Irish court has identified that there is tension between the definition and interpretation of "product" in earlier decisions of the CJEU concerned primarily with Article 3(c), and an apparently contradictory approach taken in more recent decisions concerned primarily with Article 3(a).