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20 June 2014Biotechnology

Victory for Bayer as CJEU grants safeners extra protection

Europe’s highest court has said that products used by agrochemical companies to help maintain plants can be given extended patent protection.

In a preliminary ruling released yesterday, June 19, the Court of Justice of the European Union (CJEU) said that a safener can be the subject of a supplementary protection certificate (SPC).

The CJEU was asked to rule on the issue after agrochemical company Bayer CropScience AG, a subsidiary of pharmaceutical group Bayer AG, complained about the German Patent and Trademark Office’s (DPMA) refusal to grant it an SPC in 2007.

SPCs extend the protection of a patented active ingredient, or combination of ingredients, in a pharmaceutical or plant protection product, after the patent has expired.

According to the CJEU, safeners are compounds added to a herbicide that “prevent the harmful effects of a herbicidal active substance”, in order to increase its effectiveness.

The Federal Patent Court of Germany (Bundespatentgericht) asked the CJEU for its thoughts on the case following Bayer’s appeal against the DPMA’s decision.

The case, Bayer CropScience AG v Deutsches Patent-und Markenamt, is expected to bring greater clarity to agrochemical companies looking to extend protection for their products.

In the case, the CJEU was asked to consider whether the terms “product” and “active substances” outlined in EU regulation 1610/96, which assesses the granting of SPCs for plant products, could be interpreted as covering a safener.

The CJEU said: “The answer to the question whether a safener is an active substance, therefore depends on whether that substance has a toxic, phytotoxic or plant protection action of its own.

“If that is the case, it falls within the concept of a ‘product’, and may therefore, give rise to the issue of an SPC,” the judgment said.

“The term ‘product’ and the term ‘active substances’ must be interpreted as meaning that those terms may cover a substance intended to be used as a safener,” the CJEU added.

Bayer did not respond to a request for comment on the ruling.

CJEU preliminary rulings are not final and it will be up to the national court in question to issue a final ruling.

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