"Merck v Deutsches Patent is the first case at EU level to consider the possibility of granting a negative or zero term SPC. Advocate General Yves Bot recently gave his opinion on this issue of crucial commercial importance to the industry, which so far has been approached inconsistently by various Member States.
Although the SPC Regulation provides the tools to calculate the duration of an SPC, it does not address the situation where the period between the date on which the application for a basic patent was lodged and the date of grant of the first MA is less than five years, such that the SPC would have a negative or zero term. If the SPC was an independent right, this lacuna in the law would not have much importance. However, given that the option to apply for a paediatric extension depends on the prior existence of an SPC, the issue of negative or zero term SPCs is of major relevance.
This article assesses the impact of the Advocate General's opinion and an alternative interpretation that we consider to be more consistent with the objectives pursued by both the SPC and the Paediatric Regulations".
A niche blog dedicated to the issues that arise when supplementary protection certificates (SPCs) extend patents beyond their normal life -- and to the respective positions of patent owners, investors, competitors and consumers. The blog also addresses wider issues that may be of interest or use to those involved in the extension of patent rights. You can email The SPC Blog here