Three CJEU decisions that answer some questions but pose many more

Abstract

On 12 December 2013, the Court of Justice of the European Union (CJEU) issued judgements in three cases that raised fundamental questions regarding the operation of the system of Supplementary Protection Certificates (SPCs) in Europe. The judgements given by the CJEU provide patent offices and national courts across Europe with important guidance on the circumstances under which SPC protection will be available. This guidance appears to set a higher standard with regard to the strength of the connection that is required between the nature of the active ingredient(s) that are authorised for sale and the ‘core inventive advance’ of the patent upon which the supplementary protection is based. Whilst providing a modicum of clarification, the 12 December judgements appear to follow in the footsteps of other of the CJEU's recent judgements in raising more questions than they answer. With this in mind, the various national patent offices and courts may well struggle to interpret parts the CJEU's rulings, or apply them to cases having different fact patterns. This is likely to lead to still further questions being referred to the CJEU on related points. However, given the sheer number of difficult questions that could now arise, it might also lead to questions about whether ‘tweaking’ the SPC legislation would be preferable to repeatedly presenting the CJEU with the increasingly challenging task of interpreting the present legislation in a clear, coherent and fair manner.