July 14, 2017March 29, 2019 by Martin Wilming

BREAKING: FPC to assess SPC granting practice

Case No. O2017_001 ¦ Main hearing of 21 August 2017 @ 10am

Note that Hepp Wenger Ryffel AG is involved in this matter on behalf of the plaintiff.

The FPC published a leaflet earlier today with key bibliographic details of a hearing in the matter O2017_001 (watch out for a link ‘weitere Informationen’ on the list of public hearings):

Such a leaflet has been published for the very first time; it is only available in German language, at least for the time being.

Nullity of the SPC C00915894 is at stake. The basic patent is EP 0 915 894 B1; see EPO Register and Swissreg.

The pharmaceutical is Gilead‘s Truvada®, a combination of tenofovir disoproxil fumarate and emtricitabine. The medication is used to treat and prevent HIV/AIDS.

The question of whether or not a product is protected by a basic patent is decisive for an SPC both in the European Community (Regulation (EC) No. 469/2009, Art. 3 lit. a) and Switzerland (Art. 140b(1) lit. a PatA).

This appears to be an easy decision at first glance, but the devil is in the detail:

The so-called ‘infringement test’ has been applied in Switzerland since the Supreme Court’s decision BGE 124 III 375 – Fosinopril in 1998.

On the contrary, the CJEU disapproved the ‘infringement test’ with its decision CJEU C-322/10 – Medeva of 2011 (and the subseqent decisions CJEU C-6/11 – Daiichi Sankyo, C-518/10 – Yeda and C-630/10 – University of Queensland.)

(C) The Court of Justice of the European Union

Thus, the latest judgements of the CJEU and the Swiss Supreme Court are not in line anymore. The key issue in this matter is whether the Swiss SPC granting practice is to be brought in line with the case law of the CJEU.

When it got public in 2015 that the Swiss Federal Institute of Intellectual Property (FIIP) intended to change its practice to bring it in line with the CJEU case law, some commentators felt that this would draw Switzerland’s SPC granting practice into a future mess. However, this obviously also depends on whose side you’re on. We’ll see …

Reported by Martin WILMING