Court of Justice references and national consultation -- again

Instant consultation. In Actavis Group PTC EHF & another v Sanofi Pharma Bristol-Myers Squibb SNC [2012] EWHC 2545 (Pat), Mr Justice Arnold (Patents Court, England and Wales), decided to refer some questions to the Court of Justice of the European Union [usually abbreviated to CJEU these days, but according to some diehards and traditionalists it's still the ECJ] for a preliminary ruling.  The Court of Justice has now allocated the reference a case number (it's Case C-443/12) and has confirmed that the two questions posed by the Patents Court are as follows:

"1. What are the criteria for deciding whether "the product is protected by a basic patent in force" in Article 3(a) of Regulation 469/2009/EC ("the Regulation")?

2. In a situation in which multiple products are protected by a basic patent in force, does the Regulation, and in particular Article 3(c), preclude the proprietor of the patent being issued a certificate for each of the products protected?"

If you weren't already in the know, or prepared to do some reading, you might not guess from the questions that the underlying litigation concerns the important, extraordinarily complex and both economically and politically sensitive issue of the extension of the term of pharmaceutical patents beyond the normal maximum patent term by means of supplementary protection certificates (SPCs).  If you'd like to send a comment to the UK Intellectual Property Office (IPO) concerning the court's questions, which might result in the UK making representations to the court, please email policy@ipo.gsi.gov.uk by 16 November 2012.

In the past, this Kat has let off various volleys of criticism in the general direction of the British government (see for example here and here) on account of the pathetically short time in which stakeholders and others must try to scrape together a plausible response to send to the IPO. Sometimes only a few paltry days are given, taking no account of weekends and public holidays.  The IPO has now responded as follows, via the circular in which it invites comments on the questions referred:

"We understand how difficult it is to provide detailed comments in the time available. The IPO has tight time limits in which to consider and provide advice to ministers on ECJ cases [Hold on, you don't explain clearly why there's so little time, which seems extraordinary when one considers that the passage of time from the making of the initial reference to the delivery of a Court of Justice is the best part of two years]. In order to help us provide the right advice, we just need a short email by the deadline stating whether you think the UK should intervene and some general points about how you think we should answer the questions [very nice, but it's not always easy, or indeed feasible, for representative organisations, industry and consumer groups to confer and decide whether they wish to make a submission, in so short a time].

You are welcome to follow this email up with more detailed comments after the deadline, which can be taken into consideration if we have chosen to submit observations [this indicates that the decision to intervene in the Court of Justice will already have been taken. Not much chance of influencing that decision, presumably] or if we decide to attend a hearing.

If you are aware of any references to the ECJ that are not currently included on our website, you are also welcome to send us your views. If you choose to do this, please include clear information about the case to help us to identify it [one might have hoped that the IPO would know how, and where, to find CJEU cases, even when blindfolded, in the dark and at the end of a long and enjoyable Christmas party]".

The IPKat welcomes the fact that the IPO has acknowledged the fact that the time given for consultation is woefully short and quite inadequate as it stands.  But he feels that this excellent office can do far more than that, particularly when the case on which stakeholders are invited to comment is one which emanates from under its nose, as it were, since it comes from its home jurisdiction and has already received a good deal of publicity via the normal channels through which intellectual property news permeates.  He knows how many of his readers have been angered or frustrated by the short time limits and is sure that some of them would be happy to sit down with representatives from the IPO, the Treasury Solicitor's office, the professions and indeed any other body, public or private, that might conceivably have some constructive suggestions to make.