The CJEU again on SPC term 17 Jan 2018

In its judgment of 20 December 2017, in case Case C-492/16 (Incyte Corporation vs. Szellemi Tulajdon Nemzeti Hivatala), the Court of Justice of the European Union (CJEU) held that the holder of an SPC may bring an appeal to rectify the term of the SPC, so that the latter’s term is calculated as from the date the decision to grant a marketing authorization has been communicated to the holder and not, as in the past, from the date of issuance of the marketing authorization.

The case, initiated by a preliminary ruling request by the Budapest High Court, is essentially the next episode of CJEU’s Seattle Genetics judgment of 6 October 2015 (C-471/14), where the CJEU clarified the term of an SPC. After that judgment, SPC holders across Europe attempted to avail from the court’s ruling and secure a rectified, longer, term of their SPCs. This did not prove to be simple but has, now, given the CJEU an opportunity to confirm its Seattle Genetics judgment and clarify that SPC holders have the right to seek, via an appropriate remedy pursuant to Article 18 of Regulation 469/2009, the rectification of their SPC’s term, so long as the SPC has not expired. In the CJEU’s own words

The CJEU, helped by the factual background of the case, avoided to rule on whether the national authorities must ex officio rectify the term of an SPC. This may not sit well with IP owners, but, on the other hand, may also be a reasonably conservative approach by the CJEU potentially calculating the effects of administrative burden that would result if national authorities were deemed to obliged to rectify SPC terms on their own motion.