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Kartellrechtszyklus  |  04/20/2018  |  05:00 PM

Article 3(a) of SPC Regulations: Problems and Solutions

 5:00 - 7:00 p.m.,  Sir Richard David Arnold (Judge of the High Court of Justice, Chancery Division)

Max Planck Institute for Innovation and Competition, Munich, R00m E10


Commented by Dr. Martin Jäger, Judge at BPatG


Under Art. 3(a) of Regulations 469/2009 and 1610/96, a supplementary protection certificate may be granted for a product only when the latter is protected by the basic patent. Despite the seemingly simple wording, the provision is not uncontroversial. The CJEU has dealt with it in various reasoned orders and judgments, and three referrals are currently pending that essentially ask the same question that was posed in Eli Lilly and Medeva: What are the criteria for deciding whether a product is protected by the basic patent? The CJEU’s case law is relatively clear in ruling out that Art. 3(a) is just a reference to the law applicable to the basic patent. However, it is less clear in defining the meaning of the qualification that the product must be “specified” or “identified” in the claims in order for it to be protected by the basic patent within the meaning of Art. 3(a), and in specifying the function served by this requirement. These and other related topics will be the subject of the presentation of Sir Richard Arnold, on which Dr. Martin Jäger will comment. The speakers are involved in the cases that lead to the referrals. 


Sir Richard David Arnold (University of Westminster and University of Oxford) has been a judge at the High Court of Justice, Chancery Division (2008), since 2013. He has decided some of the most relevant patent and SPC cases in the UK in the last fifteen years. An External Member of the Enlarged Board of Appeal of the EPO since 2016, he is also a prolific contributor to legal journals and books. He is the author of Performers’ Rights (5th ed, Sweet & Maxwell, 2015).


Dr. Martin Jäger has been a judge at the German Federal Patent Court (3rd, 14th and 35th Senate) since 2012. Before that, he was patent examiner at the DPMA, where he led the SPC Project Group from 2000 to 2012.



To facilitate our preparations we ask for registration until Tuesday, April 17, 2018 via email to elisabeth.amler(at)ip.mpg.de.