"On three occasions, French courts had ruled that an SPC confers exactly the same protection scope as a patent so that a product A+ B was considered as infringing an SPC on A.
Now for the first time, the Cour d'appel has had a chance to consider the issue".As Laëtitia Bénard and David Por (Allen & Overy LLP) were swift to tell us, this is not in fact the case:
"The Paris Court of Appeals indeed rendered a previous decision on 15 March 2011, in E.I. Du Pont De Nemours And Company and Laboratoires Merck Sharp & Dohme-Chibret v. Mylan SAS and Qualimed SAS, in relation to the losartan SPC which was reported on this blog. In the losartan case, the Paris Court of Appeals ruled the opposite way, confirming the preliminary injunction ordered in first instance and stating the following:Further research into the matter has revealed that both sets of lawyers are right and that the fault lies with this blogger. In editing the original piece for publication and forgetting the existence of the earlier post, I had taken the words "Now for the first time" as meaning that it was the first time the Cour d'appel had ruled at all, whereas those words were intended to indicate that it was the first time the Cour d'appel had the opportunity to rule in the opposite direction to that taken in the earlier decision of 15 March.
"An SPC, which aims at supporting innovation in the field of health, grants a protection to a product as a medicament under all the forms that fall within the protection of the basic patent.
Consequently, in the case at hand, the certificate which has been extended grants the same rights as those of the basic patent covering losartan, and the protection granted by this certificate concerns the product covered by the MA for any use of this product as a medicament that has been authorised prior to the expiry of the certificate. Consequently, the protection encompasses any use of losartan as a medicament".
I offer my apologies to both sets of lawyers -- and my thanks to them for assisting me in sorting this problem out.