Clifford Chance

Attention SPC owners! The CJEU opens door to rectification of SPC expiry dates

22 January 2018

The CJEU has ruled in Incyte that national patent offices must allow the rectification of granted SPCs whose expiry date has been incorrectly calculated.

Following the criterion set out in the Seattle Genetics judgment, this is highly relevant in situations where the registered duration of the SPC is too short, because it was wrongly calculated on the basis of the grant date of the marketing authorisation and not, as it should be, on the basis of the notification date of the grant decision.

Incyte is good news for SPC holders in Spain, since the Spanish Patent and Trademark Office has always refused to rectify the expiry dates of granted SPCs. This practice will now presumably cease to exist.

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