There have been quite a number of recent developments in European SPC cases relating to combination products. Courts seem to have difficulties in dealing with this issue and various tests regarding validity and infringement have been developed by different national courts.
In today's SPC and Combination Products special, editors Philippe de Jong (Altius) and András Kupecz (Simmons & Simmons) focus on these validity issues and infringement issues. The contributions can both be read jointly and separately.
Medeva BV v. The Comptroller General of Patents, High Court of Justice, Chancery Division, Patents Court, London, UK, 27 January 2010, Case No.  EWHC 68 (Pat)
The High Court has dismissed an appeal against the UK IPO's decision to refuse five applications for supplementary patent certificates ("SPCs") relating to a patent claiming a method of making vaccines against whooping cough using just two active ingredients. Four of the applications were dismissed because the relevant products, each containing additional active ingredients to the two described in the patent, failed to satisfy the requirement in Article 3(a) of Regulation (EC) No 469/2009 ("the SPC Regulation") that they be "protected by a basic patent in force". The fifth application was dismissed because the relevant product had never received the valid marketing authorisation required by Article 3(b) of the SPC Regulation. The High Court also held that in doing so when only an expression of opinion of the examiner, and no decision, had been issued, Medeva BV prematurely and improperly filed its notice of appeal.