Paris Court of Appeals Rejects Pharmaceutical Supplementary Protection Certificate Applications

By and on June 17, 2021

One of the conditions for obtaining an SPC is that “the product is protected by a basic patent in force”. The Court of Justice of the European Union (CJEU) clarified to what extent a product must be identified by the claims to meet this condition in Teva, Eli Lilly, and Royalty Pharma.

In Eli Lilly, the CJEU notes that an active ingredient which is not identified in the claims of a basic patent by means of a structural or functional definition cannot be considered to be “protected by a basic patent.”

The active ingredient does not, however, have to be identified in the claims by a structural formula. A functional definition of the active ingredient may suffice if it is possible to reach the conclusion on the basis of the claims (interpreted in light of the description of the invention) that they relate “implicitly but necessarily and specifically, to the active ingredient in question.

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Katya Ascher
Katya Ascher focuses her practice on patent law issues in litigation and transactional matters across technology sectors. She regularly negotiates every type of agreement associated with technology transfer, research and development, manufacturing and distribution. She has over a decade of experience counseling clients in the United States, France, and the United Kingdom. Her clients include mid-sized companies and start-ups, operating in the biotechnology, pharmaceutical, medical device, and engineering fields. Read Katya Ascher's full bio.

Edouard Becker
Edouard Becker focuses his practice on intellectual property law, with a particular focus on pharmaceutical, medical device, biotech and healthcare industries. He regularly advises French and foreign companies on transactional, licensing and regulatory matters. He particularly advises life sciences companies in the preparation and negotiation of collaborations, licensing and distribution agreements. Read Edouard Becker's full bio.