23/03/2022
In previous articles we have discussed the ongoing developments to bring the Unified Patent Court (UPC) and Unitary Patent into effect.
However, one piece of the puzzle that has not yet been solved is how Supplementary Protection Certificates (SPCs), which are national intellectual property rights that can extend patent protection for pharmaceutical and plant protection products for up to five years, will be provided for under the new Unified Patent system.
The European Commission has here published an initiative to put in place a unitary SPC and/or a single procedure for granting national SPCs.
While this may seem in conflict with the current SPC regime, whereby SPCs are administered and managed at national level, the introduction of a unitary SPC or single procedure for granting national SPCs will, according to the commission, “make SPCs more accessible and efficient, and benefit the health sector”. Thus, the proposed regulation is likely to extend the advantages of the Unitary Patent system to SPCs. However, it is worth noting that as with the Unitary Patent system, not all European countries will be taking part, so for countries not participating in the new system, the current national SPC arrangements will continue.
As SPCs are typically used to extend the term of a pharmaceutical company’s “crown jewel” patent rights, the value of this proposed unitary SPC right will be determined by whether big pharma is willing to commit such critical patents to the Unitary Patent system. It will, therefore, be interesting to see how the proposed unitary SPC will complement the Unitary Patent system and work alongside existing national rights, and accordingly, whether pharmaceutical patent applicants will file applications for Unitary Patents.
Although a unitary SPC and/or a single procedure for granting national SPCs is looking likely, the initiative is currently in the “call for evidence” stage with the feedback period open from 8 March 2022 until 5 April 2022. However, commission adoption of the initiative is currently planned for the first quarter of 2022, therefore we will not have to wait long for further developments.
This article is for general information only. Its content is not a statement of the law on any subject and does not constitute advice. Please contact Reddie & Grose LLP for advice before taking any action in reliance on it.
