For the whole decision click here: o13805
Summary
The applicant filed two co-pending applications relating to the same product based upon common marketing authorizations, but different basic patents. One application was granted and the applicant was invited to withdraw the other application. The applicant argued that under a literal interpretation of Article 3(c) of the Medicinal Products Regulation there was no objection and that this application should be allowed. The applicant further argued that using Article 3(2) of the Plant Protection Regulation to interpret Article 3 of the current Regulation was illegitimate and thus it could not be relied upon. Furthermore, the applicant argued that interpreting Article 3 in the light of Article 3(2) was contrary to the purpose of the Regulation since it reduced, not promoted, the ability of a patent holder to obtain supplementary protection. The applicant also argued that by not allowing the applicant a further certificate they were being treated inequitably and that an uniform solution at Community level, whereby certificates were granted under the same conditions, would not be achieved if the holder of more than one patent were denied the right to be granted more than one certificate, whilst a plurality of certificates for the same product could be granted on the basis of different patents in the hands of two or more holders. The hearing officer rejected these arguments finding that the Regulation did provide a uniform and equitable solution whereby one certificate may be granted under the same conditions to any holder of one or more patents which protect the product in question. Moreover, this is also wholly consistent with Article 3(2) of the Plant Protection Products Regulation, which he was bound to consider in interpreting Article 3. Consequentially, it was not inequitable to deny a patent holder more than one certificate for a product whilst allowing other patent holders one certificate for that product. Therefore, since one application had been granted the further application from the applicant for the same product was rejected.