Octrooirecht. ABC. "This concerns a request for a preliminary ruling in a case where the referring UK High Court asks a series of multi-part questions concerning the application of Regulation 469/2009 concerning the supplementary protection certificate for medicinal products."
Prejudiciële vragen. "Question 1. (a) If a patent does not, upon grant, contain a - claim that explicitly identifies two active ingredients in combination, but the patent could be amended so as to include such a claim could this patent, whether or not such an amendment is made, be relied upon as a "basic patent in force" for a product comprising those ingredients in combination pursuant to Article 3(a) of Regulation No 469/2006/EC ("the Regulation")?
(b) Can a patent that has been amended after the grant of the patent and either (i) before and / or (ii) after grant of the SPC be relied upon as the "basic patent in force" for the purposes of fulfilling the condition set out in Article 3(a) of the Regulation?
(c) Where an applicant applies for an SPC for a product comprised of active ingredients A and B in circumstances where,
i) after the date of application for the SPC but before the grant of the SPC, the basic patent in force, being a European Patent (UK) (the "Patent") is amended so as to include a claim which explicitly identifies A and B;
and
ii) the amendment is deemed, as a matter of national law, always to have had effect from the grant of the Patent; is the applicant for the SPC entitled to rely upon the Patent in its amended form for the purposes of fulfilling the Art 3(a) condition?
Question 2. For the purposes of determining whether the conditions in Article 3 are made out at the date of the application for an SPC for a product comprised of the combination of active ingredients A and B where (i) the basic patent in force includes a claim to a product comprising the combination of active ingredients A and B and (ii) there is already an SPC for a product comprising active ingredient A ("Product X") is it necessary to consider whether the combination of active ingredients A and B is a distinct and separate invention from that of A alone?
Question 3. Where the basic patent in force "protects" pursuant to Article 3(a):
(a) A product comprising active ingredient A ("Product X"); and
(b) A product comprising a combination of active ingredient A and active ingredient B ("...