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ARTICLE · 31 DECEMBER 2013

One For All Or One For One More Than One Supplementary Protection Certificate For One Basic Patent?

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On December 12, the Court of Justice of the European Union issued its decisions in cases C-443/12, Actavis, and C-484/12, Georgetown.

United StatesIntellectual Property
Christian Fulda
Christian Fulda
Roland Graf
Roland Graf
Christiane Schweizer
Christiane Schweizer
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On December 12, the Court of Justice of the European Union ("CJEU") issued its decisions in cases C-443/12, Actavis, and C-484/12, Georgetown (referred to as "Georgetown II").

In these decisions, the CJEU outlined the circumstances under which a patent proprietor may obtain more than one supplementary protection certificate ("SPC") based on the same basic patent. The decisions will necessitate changes in SPC-granting practice in the majority of Member States, liberalizing the practice in some while raising new requirements in others.

Issue

Regulation (EC) No. 469/2009 of the European Parliament and of the Council of May 6, 2009 (the "SPC Regulation") defines the conditions for the grant of an SPC in Article 3. These conditions are: (i) the product (meaning the active pharmaceutical ingredient, "API") or a combination of APIs has to be protected by a basic patent, (ii) a valid marketing authorization for the API exists, (iii) no other SPC exists for said API,

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