The planned the new unitary patent system does not include the creation of a ‘unitary SPC’.  Instead, it is anticipated that a unitary patent may be used as the basic patent for a national SPC application. However, it is becoming increasingly likely that the European Commission (EC) will introduce a unitary SPC.

The EC has recently published the results of a public consultation on SPCs and patent research exemptions (‘Bolar’ exemptions) .  Also published were a Study and annexes on the legal aspects of Supplementary Protection Certificates in the EU by the Max Planck Institute for Innovation and Competition and a Study of the economic impact of supplementary protection certificates, pharmaceutical incentives and rewards in Europe by Copenhagen Economics.

The proposal of unitary SPC has proved to be popular, so a unitary SPC system looks set to be created in due course.  However, key details remain uncertain.  In particular, the consultation and studies mentioned above reveal a lack of consensus regarding the desired territorial scope of a unitary SPC; what kind of body should be entrusted with the grant of such SPCs; and what language regime would be used.

A system whereby a ‘virtual’ office composed of experts from national patent offices would grant unitary SPCs, and decisions of this virtual office could be appealed to the Unified Patents Court (UPC) was previously proposed by industry associations and remains a likely outcome.

The consultation also discusses a proposed manufacturing waiver, which is discussed in this earlier post.

“respondents across all categories favour the creation of a unitary SPC, which would extend unitary patents when such patent rights expire.”