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Interest in legal protection for a nullity action – Part 2 (SPC)

by Dr Christian Meyer

Already for the second time in 2020, the Federal Court of Justice (BGH) has had the opportunity to comment on the prerequisites for an interest in legal protection in the case of a nullity action after the expiry of the relevant property right.

As reported here on October 20, 2020, the Federal Court of Justice (FCJ) had clarified in Juli 2020 that the interest in legal protection required for a patent nullity action, after the term of protection of that patent has expired, can only be denied ifa claim from the patent is no longer seriously possible (decision of July 13, 2020, file no. X ZR 90/18 (BPatG).

In the Truvada decision issued on September 22, 2020 (file no. X ZR 172/18), the BGH made it clear, in addition to some other legally interesting aspects, that the above considerations on the interest in legal protection also apply to supplementary protection certificates (SPC) and hereby expressly referred to the aforementioned Decision of July 13, 2020.

As a result, it is necessary to examine whether the need for legal protection for the nullity suit continues to exist after patent or SPC protection has expired, both in the case of already pending or possible parallel infringement and nullity suits. However, this should only be denied in exceptional cases.


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