France SPC Calculation

The French Intellectual Property Office previously did not accepted to adjust the expiration date of a granted Supplementary Protection Certificate (SPCs) when it had been calculated on the date of grant of the Marketing Authorization (MA), not on the date of Notification of the MA, as decided by the CJEU. (Seattle Genetics Decision)

The French IPO has changed its stance and now extends the expiration date of granted SPCs, in compliance with the CJEU decisions. (Seattle Genetics and Incyte Corporation)

French SPC owners can file requests before the French IPO to change expiration date of granted SPCs.

Translated Public statement issued by French IPO on January 15, 2018 (Click here to view Public Statement):

In a judgment of 6 October 2015 (case C-471/14, Seattle genetics Inc.), the Court of Justice of the European Union considered that Article 13 (1) of Regulation No 469/2009, which governs duration of Supplementary Protection Certificates (SPCs) for medicinal products, was to be interpreted as meaning that 'the date of the first marketing authorization in the Union', within the meaning of that provision, is that of the notification. the decision granting the marketing authorization to the recipient 'and not the date of granting.

In that case, the application for a CCP was based on a Community marketing authorization (MA) issued by the Commission pursuant to a decision taking effect, pursuant to the Treaty on the Functioning of the European Union, the day notification to the addressee.

Thus, all CCPs issued by the INPI after the judgment of 6 October 2015, for medicinal products requested on the basis of a Community MA, have their period of validity calculated taking into account the date of notification of the AMM as published in the Official Journal.

The European Court of Justice issued a new judgment on 20 December 2017 (Case C-492/16 Incyte Corporation), which held that the CCPs issued prior to the Seattle Genetics judgment, and whose duration validity had been calculated taking into account the date of granting of the marketing authorization, must be subject to rectification, the latter may be introduced until the duration of the certificate has expired.

Pursuant to this case-law, it is now possible for CCP holders in force, whose duration has been calculated taking into account the date of the granting of a Community MA, to obtain the rectification of the term of their CCP.

This rectification may be effected on a simple request from the holder of the SPC entered in the National Patent Register, together with a copy of the publication in the Official Journal of the date of notification of the Community AMM concerned.