The Patent and Market Court of Appeal (PMÖD) has decided in eight cases on the question of whether a patent holder can have certain Swedish Patent Office (PRV) decisions reconsidered although the period for appealing the decisions has expired. The decisions by PMÖD mean that an SPC holder can have the duration of the SPC corrected in accordance with the principles as outlined in the CJEU decision in C-471/14, Seattle Genetics, also in a case where the SPC has been granted at a point of time before the Seattle Genetics decision was taken. According to PMÖD, such correction is however only possible as long as the SPC duration has not yet commenced. The correction can prolong the duration of the SPC by up to about a week of time, depending on the specific case, and can be of great commercial value to the SPC holder. The possibility of prolonging the SPC duration only applies to SPCs having a duration of less than the maximum period of 5 years.
It remains to be seen if the outcome in case C-492/16 regarding the interpretation of Article 17(2) of Regulation (EC) No. 1610/96, which has been referred to the CJEU, will further change the practice, and, if so, whether such change will open for correction also in a case where the SPC duration has commenced.
Gustaf Örn, Omar Baki, and Camilla Lidén, of BRANN AB.