As expected, the AG published his opinion in the above CJEU referrals on the 11th September 2019. The issue at hand is the interpretation of Article 3(a) of the SPC Regulation (EC 469/2009) which states that an SPC shall be granted for a ‘product protected by a basic patent in force’.
In C-114/17*, the question asked was how Article 3(a) should be applied to a single compound within a Markush formula claim. In C-650/17, the question asked was how Article 3(a) should be applied to claims when the compound is defined using functional language.
The referrals were heard at a single joined hearing in Luxembourg, on 27 June 2019. The Opinion does seem to reflect the discussion and questions from the AG at the hearing.
The non-binding opinion of the AG is clear in that the above two questions should be answered by applying the test set out in the recent CJEU judgment C-121/17 (Teva). The AG also provided his view that the ‘core inventive advance’ of the patent is of no relevance in the context of Article 3(a).
We wait to hear the full judgment from the CJEU.
The full opinion from the AG can be found here.
Please contact Kristina Cornish, Dayle Callaghan or your usual Kilburn & Strode advisor with any questions.
*Kilburn & Strode are part of the team defending the SPC in C-114/17.