An SPC hat-trick: a third referral under Article 3(a) heads to the CJEU

This article reviews the latest referrals to the CJEU on the intepretation of the SPC Regulation, in particular what it means for a product to be "protected" by a patent under Article 3(a).

This article was first published by Lawtext Publishing Ltd in the BioScience Law Review vol 16 issue 4, pp197-202 who have agreed to Simmons & Simmons making it available on elexica.

The UK Court of Appeal has referred another question to the Court of Justice of the European Union (CJEU) seeking clarity concerning the correct interpretation of Article 3(a) of the SPC Regulation. This makes it a hat-trick of referrals trying to understand what it means for a product to be "protected" by a patent. This referral follows Sandoz’s appeal of Arnold J’s first instance decision, in which the outcome was held to be clear (in favour of SPC grant), even if the legal test was not. The UK Court of Appeal has therefore overturned Arnold J’s decision, stayed the appeal and referred another question to the CJEU.

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