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In European Union member countries, a supplementary protection certificate (SPC) is a sui generis, patent-like, intellectual property right. This type of right is available for medicinal products, such as drugs, and plant protection products, such as insecticides, pesticides and herbicides.
A supplementary protection certificate comes into force only after the corresponding patent expires. It has a maximum life time of 5 years. The market exclusivity cannot however exceed 15 years. It may be viewed as an extension of life time of a patent, although the rights are somewhat different.
Supplementary protection certificates were introduced to compensate for the long time needed to obtain regulatory approval of these products (i.e. authorization to put these products on the market).
Applications for a supplementary protection certificate must be filed on a country-by-country basis. There is no unitary European supplementary protection certificate, but national ones only.
Determination of term
The term of a SPC depends on the date of issuance of the first market authorisation within the EEA:
- If the first market authorisation is issued less than five years after the filing date of the corresponding patent, no SPC is granted.
- If the first market authorisation is issued more than five years but less than ten years after the filing date of the corresponding patent, a SPC is granted for a term corresponding to the period elapsed between the five-year point and the market authorisation issuance date.
- If the first market authorisation is issued more than ten years after the filing date of the corresponding patent, a SPC is granted for a five-year term.
A market authorisation in Switzerland is also considered as being a first market authorisation for the calculation of the SPC duration, even though Switzerland is not part of the European Economic Area (EEA). This is because such a market authorization is automatically effective in Liechtenstein, which is a member of the EEA (since May 1, 1995). This was decided by the European Court of Justice (ECJ) in joined cases Novartis et al. v. Comptroller-General and Ministère de l'Economie v. Millenium Pharmaceuticals (Cases C-207/03 [1] and C-252/03 [2]).
Legal basis
Supplementary protection certificates in the European Union are based on two regulations:
- Council Regulation (EEC) No 1768/92 of 18 June 1992 concerning the creation of a supplementary protection certificate for medicinal products [3]
- Regulation (EC) No 1610/96 of the European Parliament and of the Council of 23 July 1996 concerning the creation of a supplementary protection certificate for plant protection products [4]
Supplementary protection certificates may come into life at the expiry of a national or European patent. However, the European Patent Convention (EPC) needed to be modified to allow such "extension" of the term of European patent. Article 63 of the EPC was modified on December 17, 1991 to specifiy to, although European patents have a term of 20 years as from the date of filing of the application (Art. 63(1)),
- " nothing (...) shall limit the right of a Contracting State to extend the term of a European patent, or to grant corresponding protection which follows immediately on expiry of the term of the patent, under the same conditions as those applying to national patents: (...)
- (b) if the subject-matter of the European patent is a product or a process of manufacturing a product or a use of a product which has to undergo an administrative authorisation procedure required by law before it can be put on the market in that State. " [5]
This constituted the first revision of the European Patent Convention since its signature in 1973.
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