The ECJ has issued its ruling today in Joined Cases C-207/03 and C-252/03 Novartis AG, UCL and the Institute of Microbiology and Epidemiology v Comptroller-General of Patents, Designs and Trade Marks for the United Kingdom and Ministre de l’Économie v Millennium Pharmaceuticals Inc., formerly Cor Therapeutics Inc, two cases on supplementary protection certificates (SPCs) for pharmaceutical products for which patent protection is expiring.
In Case C-252/03 Millennium's predecessor applied to the Luxembourg Minister for the Economy for an SPC under for Eptifibatide, for which the date of the first marketing authorisation in the EU was 1 July 1999. Millennium said in its application that a marketing authorisation had been issued for that medicinal product by the Swiss authorities on 27 February 1997. On the ground that Swiss marketing authorisations are automatically recognised under Liechtenstein law (Liechtenstein being an EEA state), the Minister issued an SPC and fixed its date of commencement as the date of the Swiss marketing authorisation. Millennium sued, claiming that that date should be replaced by 1 July 1999. Again, the matter was referred to the ECJ. After due deliberation that court ruled:
"In so far as an authorisation to place a medicinal product on the market issued by the Swiss authorities and automatically recognised by the Principality of Liechtenstein under that State’s legislation is the first authorisation to place that product on the market in one of the States of the EEA, it constitutes the first authorisation to place the product on the market within the meaning of Article 13 of Regulation 1768/92 of 18 June 1992 concerning the creation of a supplementary protection certificate for medicinal products, as it is to be read for the purposes of the application of the Agreement on the EEA".The IPKat always wondered what use Liechstenstein was to the IP community. Now he knows.
More on SPCs here and here
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