SUPPLEMENTARY PROTECTION CERTIFICATES – NEW REFERRALS TO THE CJEU

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Even though the Court of Justice of the European Union (CJEU) has handed down in the last two years a considerable number of landmark decisions concerning various aspects of Regulation 469/2009/EC (i.e. the SPC regulation), the rulings have apparently still left numerous issues of the legislation unresolved. Courts in Great Britain, Germany, and the Netherlands have now referred numerous further questions to the CJEU, which might be wondering whether there is some pan-European conspiracy to deluge it with SPC-related references. Two interesting referrals will be illustrated below.

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ADMISSIBILITY OF DISCLAIMERS – NEW LESSIONS FROM THE EPO TECHNICAL BOARDS OF APPEAL

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Last year, the EPO Enlarged Board of Appeal (EBA) handed down its decision in case G2/10 relating to the admissibility of disclaimers whose subject matter was disclosed as an embodiment (i.e. ‚positively disclosed‘ disclaimers) in the application as originally filed (cf. Newsletter issue of September 2011).

The EBA ruled that an amendment to a claim by the introduction of a disclaimer disclaiming from it subject matter disclosed in the application as filed infringes Article 123(2) EPC if the subject matter remaining in the claim after the introduction of the disclaimer is not, be it explicitly or implicitly, directly and unambiguously disclosed in the application as originally filed.

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PATENTABILITY OF SURGICAL METHODS – NEW INSIGHTS FROM THE EPO

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In its previous decision G1/07, the EPO Enlarged Board of Appeal (EBA) shed new light on the patentability of surgical methods, particularly those forming part of diagnostic methods. Based on this ruling the range of patentable subject matter is now limited in that methods that are surgical by nature but not necessarily by purpose are not deemed eligible for patent protection according to Article 53(c) EPC (cf. Newsletter issue of April 2010).

However, after issuance of G1/07 numerous complaints have been raised that the EBA refrained from providing any workable criteria for determining whether such surgical intervention is excluded from patent protection, that is, when an invasive step constitutes a substantial physical intervention on the body that requires professional medical skills and involves a substantial health risk.

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