News / 2020

The conditions for granting an SPC in the judgment of the CJEU in the Royalty Pharma case (WTS Legal Report No. 11/2020)

The conditions for granting a supplementary protection certificate (SPC) laid down in the EU law quite often raise some serious doubts and notoriously cause problems in practice. The Court of Justice of the European Union (CJEU) has frequently presented its position on that matter: the judgment in the case C-650/17 Royalty Pharma Collection Trust against Deutsches Patent- und Markenamt of April 30, 2020, fits into this rich, sys- tematically expanded case law of the Court in which it either elaborates on or clarifies certain issues related to the institution of the SPC.

This time the Court in Luxembourg was confronted with a dilemma: to what extent a particular active ingredient that we want to obtain an SPC for, should be individually disclosed in the patent claims so that it can be covered by the patent protection, considering that the claims include only a functional definition instead of a structural description? Furthermore, it had to ascertain how a possibility of granting the supplementary protection certificate is affected by the fact that a given ingredient has been developed after a filing date.

We will begin this issue of the WTS Legal Report by presenting the basic information concerning the SPC, putting a spotlight on the key provisions involved in the judgment. Subsequently, we will recap a factual situation in the case and afterwards we would like to closely follow a line of reasoning and argumentation put forward by the CJEU.

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