In deviation from its long-standing practice concerning the granting requirements for Supplementary Protection Certificates (SPCs), the Federal Supreme Court (FSC) harmonizes the interpretation of art. 140b para. 1 lit. a Patent Act (PatA) with the case law of the European Court of Justice (CJEU): in a landmark decision (BGE 144 III 285), the FSC replaces the infringement theory with the disclosure theory.
This article presents the relevant judgments of the Federal Patent Court (FPC), the FSC as well as the CJEU decisions and examines the change of practice, its effects on granted and pending SPCs and discusses a potential further harmonization with EU case law.
Aus der ZeitschriftLSR 1/2019 | S. 3–14 Es folgt Seite № 4
As a rule, 8 to 12 years of the regular patent term have already elapsed for a patent holder before a medicinal product with a new active ingredient obtains its first marketing authorization (MA)1 and thus…