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Propiedad Industrial e Intelectual

CJEU case law on TRIPS Agreement as a clear act according to Spanish Supreme Court

After 10 years of strong and uneven confrontation before the Spanish courts with regard to the interpretation of the scope of the prohibition of patenting pharmaceutical products in Spain, the civil section of the Supreme Court has decided that the doctrine of the CJEU rendered is clear and does not give rise to doubts on its interpretation. This is the result of a very recent interim decision of 13 October 2015 rendered in the quetiapine case, which you can downloaded from the following link: ATS 151013 Quetiapina.

Before the 7 October 1992, pharmaceutical products could not be patented in Spain. However, some companies suggested the possibility that the TRIPs Agreement would have let without effect such prohibition. This idea was promoted through the funding of specific studies with the clear aim of reaching to certain conclusions. These efforts succeeded in cases such as olanzapine, atorvastatine or losartan.

In this case, the court considered referring a question to the CJEU on the possibility of extending the protection of a process patent to the product in order to enforce directly such protection in court. After receiving the comments from the parties to that suggestion, the court says that not only the answer to that question is clear, but it also recognises that the doctrine of the European court goes beyond that. In effect, it stresses that in two decisions rendered on 30 January 2014, the patents analysed in the respective cases “affected European patents that had been granted by the European Office as pharmaceutical product patents”. It further adds that the European court “does not admit the singularity of the fact that the patents were European, and that they had been recognised as product patents by the European Patent Office”.

The court concludes expressing that “the doubt that the decision of the CJEU of 18 July 2013 (C-414/2011) could have raised in relation to the application of the doctrine on European patents contained therein, was answered by the same CJEU in the decisions of 20 January 2014 (C-462/13 y C/372/13)”.

Through this recent decision, the Spanish Supreme Court assumes that in this matter the jurisprudence of the CJEU is binding and it will affect the decision of the cases still pending in relation to infringement case where patents applied for before 7 October 1992 have been invoked. In the next months, we will see how the courts reflect this doctrine in the outstanding appeals on quetiapine, escitalopram, sildenafil or paricalcitol.