SPCs and Unitary Patents

Currently, Supplementary Protection Certificates (SPCs) can be obtained on the basis of granted European patents. But there is a question mark over the possibility of obtaining unitary SPCs on the basis of granted European Unitary Patents.

There is no legislation that covers the possibility of a “unitary” SPC. Even though an EU wide Marketing Authorisation is possible, there is no centralised system that would allow for a “unitary” SPC. Although individual national SPC applications could be made on the basis of the granted UP, industry are still seeking certainty of how this would work in practice.

ECPA, efpia & IFAH have made a joint industry proposal for a unitary SPC to the European Commission, recognising “the importance and value of SPCs” and to show they “support the concept of unitary SPCs being granted on the basis of European Patents with unitary effect”. The proposal is that unitary SPCs on the basis of European unitary patents would be granted by a virtual body composed of SPC experts from national patent offices.

Given the rate at which progress is being made on other areas of legislation and infrastructure surrounding the unitary patent and unified patent court, the situation regarding SPCs will need to be addressed as soon as possible.