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ARTICLE · 21 JUNE 2017

Supplemental Protection Certificates Only For Inventive Advances?

Dehns
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Under what circumstances are Supplemental Protection Certificates (SPCs) available for combination products? Numerous judgements by the Court of Justice of the EU have failed...

United KingdomIntellectual Property
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Under what circumstances are Supplemental Protection Certificates (SPCs) available for combination products? Numerous judgements by the Court of Justice of the EU have failed to provide a clear answer, so a fresh referral has now been made (Teva UK Limited & others v Gilead Sciences Inc).

SPCs are only available for medicinal or plant protection products that are protected by a basic patent. This requirement has proved difficult to assess, particularly in the context of products that contain a combination of two or more active ingredients. Previous decisions from the CJEU that the product must be 'identified' or 'specified' in the claims of the patent have only been of limited help, raising the question as to how to assess these requirements. The most recent guidance that the claims must relate 'implicitly but necessarily and specifically' to the active ingredient has arguably raised more questions than it answered. Against this background, it is no wonder that a

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