Posted: January 19th, 2021
The recent decision “Truvada” of the Federal German Supreme Court, dated 22 September 2020 (docket no. X ZR 172/18) is a landmark decision in the field of supplementary protection certificates („SPCs“).
According to the decision, the legitimate legal interest (“Rechtsschutzbedürfnis”) for filing a nullity action after the expiry of the term of an SPC is only to be denied if the assertion of infringement claims by the patent proprietor is “evidently” no longer a possibility.
Moreover, the Federal German Supreme Court held that the combination of two active ingredients is usually not protected by a basic patent within the meaning of Art. 3 lit. a of the Regulation (EC) No 469/2009 concerning the supplementary protection certificate for medicinal products („Regulation“), if the basic patent describes one of the two active ingredients only as an “optional further component”.
Headnote and summary: Tobias Wuttke and Tobias Popp, Meissner Bolte