An active ingredient does not have to be identified in the patent claims by a structural formula in order to be regarded as ‘protected by a basic patent in force’
12-02-2014 Print this page
SPC possible on condition that active ingredient is covered by a functional formula that is identified in the claims of the patent
"44. [...] that Article 3(a) of Regulation No 469/2009 must be interpreted as meaning that, in order for an active ingredient to be regarded as ‘protected by a basic patent in force’ within the meaning of that provision, it is not necessary for the active ingredient to be identified in the claims of the patent by a structural formula. Where the active ingredient is covered by a functional formula in the claims of a patent issued by the EPO, Article 3(a) of that regulation does not, in principle, preclude the grant of an SPC for that active ingredient, on condition that it is possible to reach the conclusion on the basis of those claims, interpreted inter alia in the light of the description of the invention, as required by Article 69 of the EPC and the Protocol on the interpretation of that provision, that the claims relate, implicitly but necessarily and specifically, to the active ingredient in question, which is a matter to be determined by the referring court."
IPPT20131212, CJEU, Eli Lilly v HGS
C‑493/12 - ECLI:EU:C:2013:835
