On December 20, 2017, the CJEU delivered its decision in C-492/16 (Incyte Corporation v Szellemi Tulajdon Nemzeti Hivatala). At this stage, the judgement is only available in French and Hungarian. A translation into English is expected in January. According to the decision, the term of an SPC can be corrected as long as the SPC has not yet expired. This is in principle in accordance with our pleadings as representatives for holders of SPC’s in reconsideration proceedings before the Swedish Patent Office (SE PTO), and also in accordance with the subsequent appeals of SE PTO’s rejections of the reconsiderations to the 1st, and 2nd appeal instances in Sweden (The Patent and Market Court, PMD, and the Patent and Market Court of Appeal, PMÖD, respectively).
We welcome a change of practice on behalf of the SE PTO in view of the CJEU decision. It remains to be seen if the Swedish Supreme Court will grant a leave to appeal in the eight 2nd appeal instance SPC decisions, which have been appealed by the SE PTO, and, if so, whether a future decision from the Supreme Court will have any implications on the SE PTO practice.
If you have any questions, please do not hesitate to contact Gustaf Örn or Camilla Lidén.