An unwelcome development for innovators in a key case on SPCs

26 April 2018

News & Views
Author: Mike Snodin

In an opinion issued on 25 April 2018 in case C-121/17 (Teva UK and Others), Advocate-General (A-G) Wathelet has proposed that the issue of whether a basic patent "protects" an active ingredient (Article 3(a) of the SPC legislation) should be assessed using a test that appears to be relatively stringent compared to that currently used in many countries (including the UK). Adoption of that test by the CJEU would therefore represent an unwelcome development for innovators, especially as it appears fundamentally incapable of providing clarity on the precise location of the boundary between those patent claims that satisfy Article 3(a) and those that do not.