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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