EPLAW Patent Blog

AT - Oberster Gerichtshof / SPC

Oberster Gerichtshof, Austria, 22 April 2015, Case No. 4 Ob 20/15t

In C-631/13 (Forsgren), the ECJ already ruled: Article 3(b) of Regulation No 469/2009 must be interpreted as precluding the grant of a supplementary protection certificate for an active ingredient whose effect does not fall within the therapeutic indications covered by the wording of the marketing authorisation.

Article 1(b) of Regulation No 469/2009 must be interpreted as meaning that a carrier protein conjugated with a polysaccharide antigen by means of a covalent binding may be categorised as an ‘active ingredient’ within the meaning of that provision only if it is established that it produces a pharmacological, immunological or metabolic action of its own which is covered by the therapeutic indications of the marketing authorisation.

Now, the Austrian Supreme court shed further light on the SPC-regulation when applying the ECJ’s judgement (Austrian Supreme Court, 4Ob20/15t).

EU - Austria: First ratification of the Agreement on a Unified Patent Court

In a press release, the Foreign Ministry of Austria has communicated that Austria has deposited its instrument of ratification of the Agreement on a unified patent Court on August 7, 2013. However, the original optimistic hopes of the EU Commission that the first patents with unitary effect might be granted in April 2014 will not become reality. This would have required that by November 2013 at least 13 States including the United Kingdom, France and Germany would have ratified the Agreement. At present, bills are pending in France and the United Kingdom, whereas the legislative process has not yet started in Germany due to the imminent end of the legislative period.

Read the Austrian press release here.

Reported by Dr. Rudolf Teschemacher

AT - Lundbeck v. Ratiopharm / Escitalopram SPC

H.Lundbeck A/S, Lundbeck Austria GmbH v. Ratiopharm Arzneimittel Vertriebs GmbH, Escitalopram, SPC, Supreme Court, Austria, 7 March 2011, Case No. 17 Ob 5/11a

Another Escitalopram decision re the SPC for Escitalopram.

The Austrian Supreme Court considers the SPC valid. This is in line with other European courts such as the Bundespatentgericht in a decision of 30 March 2011 (the reasons have not yet been published).

Read the Austrian Supreme Court decision (in English) here.
Read the Austrian Supreme Court decision (in German) here.

Read the German Bundespatentgericht decision (in German) here.

AT - Nebivolol

Nebivolol, limitation of patent claims, Austrian Supreme Court (Oberster Gerichtshof) 19 November, 2009, Case No. 17 Ob 24/09t

A limitation of a patent claim is only admissible if it leads to a narrower scope of protection and does not go beyond the original disclosure of the patent. Under these conditions, the patent owner is free to base an infringement action on a limited version of its claims, irrespectively of initiating formal limitation proceedings.

An application for cost reimbursement by the Main Association of the Austrian Social Insurance Institutions, which contains a declaration of the price and the availability of a generic product, constitutes an offering for sale within the meaning of Section 22 para 1 of the Austrian Patent Act. Defendant therefore can be ordered to withdraw a pending application and enjoined from filing a new one before the patents expires.