The Court of Justice has confirmed that the relevant date for the first authorisation to place a product on the market is the date that the decision granting authorisation is notified to the applicant, and not the date of the decision itself. In this case - Seattle Genetics – the result of the decision is that the supplementary protection certificate (SPC) will expire on 30 October 2027, rather than 25 October 2027. The importance of gaining a few extra days of protection cannot be overstated, given the value of SPC protection. This decision is also significant, however, in clarifying the approach that national patent offices should take on this issue. In 2013, the UK IPO issued a Practice Notice confirming that it would base applications on the date of notification, but the approach across national offices was not consistent.
The Court’s reasoning was based on the objective of the SPC Regulation, namely to compensate, at least in part, for the delay to commercial exploitation of an invention due to the time that elapses between the patent application being filed and the date of the first marketing authorisation in the EU. The Court noted that the SPC holder should be able in fact to enjoy the benefit of its marketing authorisation by marketing its product, which it could not do until it was given notification of the decision.