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The recent decision “Truvada” of the Federal German Supreme Court, dated 22 September 2020 (docket no. X ZR 172/18) is a landmark decision in the field of supplementary protection certificates („SPCs“).

According to the decision, the legitimate legal interest (“Rechtsschutzbedürfnis”) for filing a nullity action after the expiry of the term of an SPC is only to be denied if the assertion of infringement claims by the patent proprietor is “evidently” no longer a possibility.

Moreover, the Federal German Supreme Court held that the combination of two active ingredients is usually not protected by a basic patent within the meaning of Art. 3 lit. a of the Regulation (EC) No 469/2009 concerning the supplementary protection certificate for medicinal products („Regulation“), if the basic patent describes one of the two active ingredients only as an “optional further component”.

The entire summary can be read here.
The judgment (in German) can be read here.

Headnote and summary: Tobias Wuttke and Tobias Popp, Meissner Bolte