The unitary patent system: are SPCs next?

A unitary supplementary protection certificate looks like a logical and desirable extension of the unitary patent system, and right owners and practitioners need to keep an eye on developments in EU regulation, as Andrew Webb and Graham Lewis of J A Kemp describe.

A supplementary protection certificate (SPC) can give up to five extra years of exclusivity after a patent has expired. SPCs are available in many European countries for active ingredients of human and veterinary medicinal products and plant protection products that require marketing authorisation. They were introduced to compensate patent owners whose effective patent term was eroded by delays in receiving marketing authorisation.

To qualify for SPC protection, there must be a valid authorisation to market the product in that country. In addition, an active ingredient of the product must be protected by a patent in force in the country of interest. Although a separate right, an SPC remains linked to the patent on which it is based. If the patent is revoked or surrendered, the SPC also lapses.

This raises some interesting questions regarding the interaction of SPCs with the upcoming unitary patent and concurrent Unified Patent Court (UPC) system.