EPLAW Patent Blog

EU - Final petition of the Advocate-General / Jodosulfuron

Final petition of the Advocate-General, Case C-229/09, Jodosulfuron, June 17, 2010, by dr. Christopher Brückner, Bardehle & Pagenberg

The German Patent Court has asked the Court of Justice of the European Union on the interpretation of Art. 3(1)(b) of Council Regulation 1610/96 regarding the creation of a supplementary protection certificate for plant protection products. This reference is Case C- 229/09 Rechtsanwaltssozietät Lovells vs. Bayer CropScience AG (jodosulfuron). The main question in this case is, whether an SPC can be granted already from receipt of a preliminary marketing approval in the sense of Article 8 paragraph 1 of Guideline 91/414/EWG, or only from receipt of a final approval in the sense of Article 4 of same Guideline.

Read the entire contribution here.
Read the previous post on this case here.

ECJ - Can a supplementary protection certificate based on a provisional marketing authorisation be granted?

Opinion of the Advocate General in Jodosulfuron published 17 June 2010 (Case 229/09, Lovells v. Bayer CropScience AG, referred by the German Federal Patent Court), with thanks to Christopher Brückner, Bardehle & Pagenberg for the head note and summary
 
This case concerns the interpretation of Article 3 (1) b of Council Regulation (EC) 1610/96 regarding the creation of a supplementary protection certificate for plant protection products based on a provisional marketing authorisation according to Article 8 (1) of Directive 91/414/EEC.

The following question has been submitted to the European Court of Justice:

"Is the existence of an authorisation to place the product on the market in accordance with Art. 4 of Directive 91/414/EEC exclusively decisive for the application of Art. 3(1) b of the Regulation or can a certificate also be granted based on an authorisation to place the product on the market in accordance with Art. 8(1) of Directive 91/414/EEC."

The opinion of Advocate General can be summarised as follows:

 I. Article 3 (1)(b) of Regulation (EC) No. 1610/96 of the European Parliament and of the Council of 23 July 1996 concerning the creation of a supplementary protection certificate for plant protection products has to be interpreted to the effect that an SPC for a plant protection product cannot be granted based on a marketing authorisation according to Art. 8(1) of Directive 91/414/EEC of 15 July 1991 concerning the placing of plant protection products on the market.

II. Reference to this interpretation of Article 3(1)(b) of Regulation (EC) No. 1610/96 cannot be made in a request for nullification of a plant protection product SPC that was filed before enactment of the present decision.

Read the opinion (only in German) here.

The opinion in several other languages (soon also in English) can be found here.