Supplementary Protection Certificates: the never-ending saga of Article 3(a)
03 December 2014
Author: Mike Snodin
SCRIP Regulatory Affairs (1 December 2014)
This article, which was first published by SCRIP Regulatory Affairs on 1 December 2014, explains why the ruling of the UK High Court from July 2014 in the Eli Lilly v HGS case may well provide what the SPC community has sought for years, namely a test for compliance with Article 3(a) that is not only simple and robust but that is also relatively straightforward to apply in a wide variety of cases. However, the article also explains why this is unlikely to be the end of the saga relating to Article 3(a) and, in this respect, discusses two alternative interpretations of Article 3(a) that have been proposed by some commentators and that could muddy the waters for a number of years to come. Whilst one of those alternative interpretations is perhaps not fundamentally inconsistent with the extent of protection test used by the UK High Court, the same cannot be said for the other - which is based upon an unusual reading of the CJEU’s ruling in Queensland and which appears to be impossible to reconcile with the conclusions reached by the UK High Court. In this respect, the article outlines reasons why that more challenging interpretation must be wrong and why the UK High Court’s extent of protection test must prevail – at least for now.