CJEU rules in favor of SPC owners – longer terms of Supplementary Protection Certificates (SPC)

According to Article 13 (1) of Regulation (EC) No. 469/2009 two dates have to be factored in when calculating the term of a SPC, namely the date the application for the basic patent was filed and the “date of the first market authorization” in the Community. While the meaning of the former date is unequivocally clear, the meaning of the latter date has been interpreted differently by patent offices and courts. Some, such as the German Patent Office, have considered the “date of the first market authorization” to be the date the market authorization is issued, others have considered it be the date the applicant is notified of the decision to grant the marked authorization. The Court of Justice of the European Union (CJEU) has now clarified in decision C-471/14, Seattle Genetics Inc, that the relevant date for calculating the SPC term is the date of notifying the applicant of the decision to grant a market authorization. This decision will be welcome by SPC owners and applicants, since it means longer SPC terms and even a few more days of exclusivity may be of significant commercial value. Also, the decision should finally harmonize the practice of the different patent offices and provide more legal certainty.