Opinion of the Advocate General — ECLI:EU:C:1999:277
Date: 1999-06-03
Language of the case: German
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Intellectual, industrial and commercial property;Approximation of laws;Patents
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary of the Judgment 
1. Approximation of laws — Uniform laws — Industrial and commercial property — 
Patent law — Supplementary protection certificate for medicinal products — Protec­
tion conferred by the certificate — Scope 
(Council Regulation No 1768/92, Art. 3(b)) 
2. Approximation of laws — Uniform laws — Industrial and commercial property — 
Patent law — Supplementary protection certificate for medicinal products — Condi­
tion for obtaining such a certificate — Product covered by a basic patent in force — 
Assessment under the relevant rules 
(Council Regulation No 1768/92, Art. 3(a)) 
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SUMMARY — CASE C-392/97 
1. On a proper construction of Regula­
tion No 1768/92 concerning the crea­
tion of a supplementary protection 
certificate for medicinal products and, 
in particular, Article 3(b) thereof, 
where a product in the form referred 
to in the marketing authorisation is 
protected by a basic patent in force, the 
supplementary protection certificate is 
capable of covering the product, as a 
medicinal product, in any of the forms 
enjoying the protection of the basic 
patent. A different interpretation 
would frustrate the fundamental objec­
tive of the Regulation, which is to 
provide for sufficient protection to 
encourage research in the pharmaceu­
tical field, which plays a decisive role in 
the continuing improvement in public 
health. 
2. As Community law now stands, the 
provisions concerning patents have not 
yet been made the subject of harmoni­
sation at Community level or of an 
approximation of laws. 
Accordingly, in order to determine — 
in connection with the application of 
Regulation No 1768/92 concerning the 
creation of a supplementary protection 
certificate for medicinal products and, 
in particular, Article 3(a) thereof, 
under which a certificate will be 
granted only if the product is protected 
by a basic patent in force — whether a 
product is protected by a basic patent, 
reference must be made to the rules 
which govern that patent. 
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