Correction of SPC duration
According to a recent decision of the European Court of Justice (EUCJ) in the case C-492/16 (Incyte), correction of the duration of a granted Supplementary Protection Certificate (SPC) is possible following to an appeal filed by the SPC holder to the competent national Patent Office.
On 24 January 2013 Incyte filed and SPC application for the product Jakavi in Hungary. On 7 October 2014, this application was granted. According to Hungarian patent law, the granting decision could be appealed within 30 days from its notification date.
On 18 November 2015, after the decision of the EUCJ in the case C-471/14 (Seattle Genetics), Incyte filed with the Hungarian Patent Office an appeal to request correction of the expiry date of the SPC on Jakavi on the basis of the outcome in the Seattle Genetics case.
Following the refusal of the correction from the Hungarian Patent Office, Incyte appealed before the national Judge who referred the case to the EUCJ.
At the end, the EUCJ clarified that, in case of granted SPCs whose duration has been calculated on the basis of the issue date of the marketing authorization instead of the date of notification of the same to the holder, the correction request can be filed with the competent national Office up to the expiry date of the granted SPC and it has to be accepted even if appeal terms are expired under the national law.