Publications

March 2016

Eli Lilly vs. HGS (C-493/12):
The UK High Court clarifies the ECJ's enigmatic decision

Authors: Dr. Oliver Ladendorf, Dr. Alexander Kleefen

After the lapse of a patent concerning a medicinal product or plant protection product, a supplementary protection certificate (SPC) may extend the protection for the patented product to compensate for the delay due to the often lengthy procedure to obtain a marketing authorization (MA). Without a MA, the product may not placed on the market, even if the corresponding patent has already been granted. In order to obtain an SPC, the basic patent must concern the same product as the MA. This provision is codified in Article 3 (a) of EC Regulation (ECR) 469/2009, which states that the product for which the MA has been obtained must be "protected by a basic patent" in order to be eligible for an SPC. However, this wording leaves room for conflicting interpretations, which has led to several referrals to the European Court of Justice (ECJ). […]

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