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11 June 2020EuropeRory O'Neill

Unitary SPC should follow new patent system: EC official

The European Commission wants to implement a unitary supplementary protection certificate (SPC), its top IP official has said.

Amaryllis Verhoeven, head of the Commission’s IP unit, said this week that a unitary SPC should follow the introduction of the unitary patent, which she  predicted could be before the end of the next year.

Verhoeven was speaking about potential reforms to the European patent system at a  virtual conference on non-practising entity activity in Europe, organised by the  IP2Innovate group.

“Once we have a unitary patent, we would also like to move to a unitary SPC … the problems that we see currently in the patent system are also replicated there—too many divergences,” Verhoeven said.

She continued: “We don't even have a European grant mechanism, only national grant mechanisms.”

The Commission has floated the idea of a unitary SPC before. It published research in May 2018 finding broad support for the idea in the European legal community.

“A unitary SPC would be a natural extension to the unitary patent,” said Beatriz San Martin, partner at  Arnold & Porter. San Martin also agreed with Verhoeven’s assessment that the current system suffered from inconsistency across Europe.

“The problem with this divergence is that it creates business uncertainty and arguably adds unnecessary cost to those companies seeking SPC protection,” she said.

Gregory Bacon, partner at  Bristows, said any unitary SPC was still “a way off”.

“Although the Commission undertook a review of the SPC legislation in the last few years, leading to the introduction of a manufacturing and stockpiling waiver last year, we don’t know if there is really appetite among EU member states (or the Commission) to re-write the SPC regulation wholescale,” Bacon said.

The Commission could find a full-rewrite of the SPC regulations to be a “Herculean effort given that it has been the subject of a considerable number of references to the CJEU, often on very similar points,” Bacon added.

According to San Martin, there are also some outstanding concerns over how a unitary SPC would work.

“I would add a note of caution in that when discussing the merits of a unitary SPC, it is helpful to understand the underlying cause for divergent practices,” San Martin said.

“Where a divergent practice relates to the technical or scientific merits of an SPC application, an analysis of those applications or cases affected are likely to conclude that they relate to borderline and highly technical cases where it is challenging to come to a clear view.

“For such cases, increased legal certainty via a unitary SPC system may be at the expense of justice and fairness,” San Martin warned.

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