Friday, 3 April 2009

A case on SPCs!

They don't come along very often - though it's not as if they are like London buses when they do, or at least I have seen no evidence yet that they might exhibit such behaviour.

Synthon v Merz Pharma [2009] EWHC 656 (Pat) is a judgment of Mr Justice Floyd. It raises some interesting points - commented on by other blogs. First, PatLit remarks on the use of the Patents Court's new accelerated procedure - and the fact that this means a case can go through the High Court like a dose of salts, then grind at snail's pace through the Court of Justice of the European Communities (references take a couple of years).

The point at issue in the case is the meaning of Article 2 of the SPC regulation, Council regulation 1768/92. the judge observed: "If Synthon is right as to the effect of Article 2, it would be bizarre if it did not provide a ground of invalidity of the SPC. On the other hand if Merz is correct, Article 2 is otiose." A tough choice.

Second, The SPC Blog stresses how important this reference is for the whole SPC world. The idea of an SPC is that it gives some extra protection for certain types of patents (pharmaceutical patents being the area concerned here), whch take a long time to get to market so that the effective term of patent protection is reduced. That's a perfectly sensible idea, it seems to me (and has seemed to me since patent term extension was first legislated for n the Copyright, Designs and Patents Act 1988). But how should it apply where the product didn't suffer any delay in getting to maret? That's what we now have to wait for the Court to tell us.

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