Negative and zero term SPCs OK says Advocate General

Merck & Co Inc v Deutsches Patent- und Markenamt (Case C-125/10)

In his opinion on 9 June 2011, Advocate General Yves Bot has advised the CJEU to allow negative and zero term supplementary protection certificates (SPCs).

Taylor Wessing says:

This is an important decision as the grant of the six-month paediatric extension is dependant on there being an SPC. Where, as in this case, the period between the patent application and the first market authorization is less than five years, no SPC with a positive term can be granted. The EU Member States have given diverging decisions on the grant of an SPC without a positive term. Now in this, the first case on the issue at an EU level, the CJEU, although not bound to, has the opportunity to follow the AG’s opinion; allowing negative term SPCs thereby, ensuring that companies investing in paediatric research are rewarded.

Read more on the opinion of the Advocate General

Lawyers Helen Cline, Christoph de Coster