Following on from my recent Blog of 7th May [insert link please], we are beginning to get preliminary reports of the Supreme Court’s Decision of 12th May 2021, concerning already-granted patents with a term of ten years from grant; in particular, whether these patents will retain this term.
Brazilian IP Law previously provided that the term of a patent is the longest of 20 years from filing date or 10 years from date of grant. This ensures a minimum term of ten years from the grant date; it can be thought of, effectively, as an automatic “Patent Term Adjustment” to account for delays in prosecution by the Brazilian Intellectual Property Office.
On 9th July 2020, the Court of Justice of the European Union (CJEU) handed down their emphatic judgement concerning Supplementary Protection Certificates (SPCs) in Santen v INPI (C‑673/18). For those interested in the details and history of the case they can be found in my earlier blog, published in January, where I discussed the Advocate General’s preliminary and non-binding opinion. As far as this judgement is concerned the conclusion is clear: “a marketing authorisation (MA) cannot be considered to be the first MA … where it covers a new therapeutic application of an active ingredient, or of a combination of active ingredients, and that active ingredient or combination has already been the subject of an MA for a different therapeutic application” – emphasis added Put another way, the CJEU has decided that the literal wording of Articles 1(a), (b) and 3(d) of the SPC Regulation mean what they say. The previous CJEU decision in Neurim is consigned to the scrapheap.