{"id":9004111222090590,"date":"2021-03-02T15:34:39","date_gmt":"2021-03-02T15:34:39","guid":{"rendered":"https:\/\/www.hgf.com\/?p=9004111222090590"},"modified":"2026-06-05T14:48:46","modified_gmt":"2026-06-05T13:48:46","slug":"a-new-dawn-for-spcs","status":"publish","type":"post","link":"https:\/\/www.hgf.com\/de\/knowledge-hub\/articles\/a-new-dawn-for-spcs\/","title":{"rendered":"A new dawn for SPCs"},"content":{"rendered":"

Will UK Courts deviate from CJEU case law and support a less restrictive interpretation of the SPC Regulation?<\/p>\n

The UK has formally exited the EU and the English Court now has the power to diverge from previously binding EU case law. Only the Supreme Court or Court of Appeal has this power and only if they consider it \u201cright to do so\u201d.<\/p>\n

One area that has been the subject of repeated references to the CJEU (Court of Justice of the European Union) is the SPC Regulation and in particular the interpretation of Article 3, which sets the conditions by which SPCs are examined and granted. This has led to the current, rather restrictive interpretation of the SPC Regulation, which is one possible area where the English Court might deviate. This is particularly so as the English court has increasingly acknowledged the importance of second medical use patents as an incentive for innovation, as well as its willingness to grant preliminary injunctions against parties who have not \u201ccleared the way\u201d.<\/p>\n

Obtaining an SPC<\/h4>\n

SPCs are national rights granted in accordance with EU legislation and related national legislation. Granted SPCs will continue to remain valid in the UK, and SPC applications pending at the end of the transition period will be examined and granted under the current framework. However, there are changes for SPC applications filed from 1 January 2021 onwards as discussed in detail in a recent article<\/a> by HGF Partner Mike Nelson.<\/p>\n

The UK IPO will continue to take account of the existing CJEU case law when examining SPC applications, and questions already referred to the CJEU by the English Courts before the end of the transition period will remain before the CJEU until resolved.<\/p>\n

Although the general framework for obtaining an SPC remains the same, the question is whether the English Court will diverge from the significant and sometimes controversial body of CJEU case law relating to SPCs. Ultimately, questions of interpretation of national SPC legislation will be determined by the Supreme Court, but the Court of Appeal can decide to diverge from CJEU case law too.<\/p>\n

Article 3<\/h4>\n

The conditions for granting an SPC are set in Article 3 of the SPC Regulation which lists four conditions that must be satisfied in order to obtain an SPC:<\/p>\n

\u201cA certificate shall be granted if, in the Member State in which the application referred to in Article 7 is submitted and at the date of that application:<\/em><\/p>\n