# C_2010246EN.01002802.xml

| 11.9.2010 | EN | Official Journal of the European Union | C 246/28 |
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11.9.2010

EN

Official Journal of the European Union

C 246/28

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Reference for a preliminary ruling from Court of Appeal (Civil Division) (England & Wales) made on 5 July 2010 — Medeva BV v Comptroller-General of Patents

(Case C-322/10)

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2010/C 246/48

Language of the case: English

Referring court

Referring court

Court of Appeal (Civil Division) (England & Wales)

Parties to the main proceedings

Parties to the main proceedings

Applicant: Medeva BV

Applicant:

Defendant: Comptroller-General of Patents

Defendant:

Questions referred

Questions referred

| 1. | Regulation 469/2009 (1) (the Regulation) recognises amongst the other purposes identified in the recitals, the need for the grant of an SPC by each of the Member States of the Community to holders of national or European patents to be under the same conditions, as indicated in recitals 7 and 8. In the absence of Community harmonisation of patent law, what is meant in Article 3(a) of the Regulation by ‘the product is protected by a basic patent in force’ and what are the criteria for deciding this? |
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1.

Regulation 469/2009 (1) (the Regulation) recognises amongst the other purposes identified in the recitals, the need for the grant of an SPC by each of the Member States of the Community to holders of national or European patents to be under the same conditions, as indicated in recitals 7 and 8. In the absence of Community harmonisation of patent law, what is meant in Article 3(a) of the Regulation by ‘the product is protected by a basic patent in force’ and what are the criteria for deciding this?

1

| 2. | In a case like the present one involving a medicinal product comprising more than one active ingredient, are there further or different criteria for determining whether or not ‘the product is protected by a basic patent’ according to Article 3(a) of the Regulation and, if so, what are those further or different criteria? |
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2.

In a case like the present one involving a medicinal product comprising more than one active ingredient, are there further or different criteria for determining whether or not ‘the product is protected by a basic patent’ according to Article 3(a) of the Regulation and, if so, what are those further or different criteria?

| 3. | In a case like the present one involving a multi-disease vaccine, are there further or different criteria for determining whether or not ‘the product is protected by a basic patent’ according to Article 3(a) of the Regulation and, if so, what are those further or different criteria? |
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3.

In a case like the present one involving a multi-disease vaccine, are there further or different criteria for determining whether or not ‘the product is protected by a basic patent’ according to Article 3(a) of the Regulation and, if so, what are those further or different criteria?

| 4. | For the purposes of Article 3(a), is a multi-disease vaccine comprising multiple antigens ‘protected by a basic patent’ if one antigen of the vaccine is ‘protected by the basic patent in force’? |
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4.

For the purposes of Article 3(a), is a multi-disease vaccine comprising multiple antigens ‘protected by a basic patent’ if one antigen of the vaccine is ‘protected by the basic patent in force’?

| 5. | For the purposes of Article 3(a), is a multi-disease vaccine comprising multiple antigens ‘protected by a basic patent’ if all antigens directed against one disease are ‘protected by the basic patent in force’? |
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5.

For the purposes of Article 3(a), is a multi-disease vaccine comprising multiple antigens ‘protected by a basic patent’ if all antigens directed against one disease are ‘protected by the basic patent in force’?

| 6. | Does the SPC Regulation and, in particular, Article 3(b); permit the grant of a Supplementary Protection Certificate for a single active ingredient or combination of active ingredients where:






  (a) | a basic patent in force protects the single active ingredient or combination of active ingredients within the meaning of Article 3(a) of the SPC Regulation; and |
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6.

Does the SPC Regulation and, in particular, Article 3(b); permit the grant of a Supplementary Protection Certificate for a single active ingredient or combination of active ingredients where:

(a)

a basic patent in force protects the single active ingredient or combination of active ingredients within the meaning of Article 3(a) of the SPC Regulation; and

| (b) | a medicinal product containing the single active Ingredient or combination of active Ingredients together with one or more other active ingredients is the subject of a valid authorisation granted in accordance with Directive 2001/83/EC (2) or 2001/82/EC (3) which is the first marketing authorization that places the single active Ingredient or combination of active ingredients on the market? |
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(b)

a medicinal product containing the single active Ingredient or combination of active Ingredients together with one or more other active ingredients is the subject of a valid authorisation granted in accordance with Directive 2001/83/EC (2) or 2001/82/EC (3) which is the first marketing authorization that places the single active Ingredient or combination of active ingredients on the market?

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3

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(1)  Regulation (EC) No 469/2009 of the European Parliament and of the Council of 6 May 2009 concerning the supplementary protection certificate for medicinal products (Codified version) (Text with EEA relevance)

1

OJ L 152, p. 1

(2)  Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to medicinal products for human use

2

OJ L 311, p. 67

(3)  Directive 2001/82/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to veterinary medicinal products

3

OJ L 311, p. 1

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