Not without my consent – Zu den Grenzen des SPC squatting, GRUR 6/2024

SPC for pharmaceutical products are an important complement to patent protection which is often inadequate in commercial terms. SPCs are designed to ensure that originators can amortize their high investments in research and clinical trials. But unlike in the USA, for example, the European SPC is not simply a patent term extension. Rather, it is a unique form of intellectual property right whose subject matter is not the overall patented invention, but the active ingredient or combination of active ingredients of a patented and authorized pharmaceutical product. This accessoriness between the basic patent and market authorization has led to many questions of interpretation and ECJ rulings since the SPC Regulation was adopted. An issue that has not yet been decided by the ECJ concerns the discrepancy between the ownership of the patent and the ownership of the regulatory marketing authorisation. This scenario, in which a patent proprietor relies on the marketing authorisation of a third party (possibly even a competitor) in said patent proprietor’s application for an SPC, is also referred to as “SPC squatting”. The article by Dr. Marco Stief published in the recent GRUR journal (GRUR 2024, 360 – beck-online) discusses the admissibility of such a practice de lege lata, which also becomes relevant in light of current reform efforts by the legislator.