A RARE DANISH DECISION ON THE SPECIFIC MECHANISM

In October, the Danish Maritime and Commercial Court (the MCC) gave a very rare decision on the scope of the Specific Mechanism. The proceedings revolved around a rather interesting question, namely whether a paediatric extension to a supplementary protection certificate (SPC) will also prolong the patentee's protection under the Specific Mechanism, i.e. the patentee's right to prohibit parallel imports from the Eastern European countries.

The defendant had imported a pharmaceutical product, Singulair, from Poland subsequent to the SPC itself having expired but during a paediatric extension of the SPC. The plaintiff brought interlocutory injunction proceedings, claiming that such imports could be banned with reference to the Specific Mechanism.
 
As its primary line of defence, the defendant held that the paediatric extension did not prolong the protection conferred by the Specific Mechanism. As its second line of defence, the defendant held that even if such protection could be conferred by a paediatric extension, such extension would only be applicable to those of the plaintiff's products which - by their strength - were indicated for children.
 
The bailiff's court (the court of first instance) held that the patent, the SPC and the paediatric extension thereof is to be considered as a single coherent right that covers all products and not just the ones authorized for the treatment of children. Accordingly, the Bailiff's Court found for the plaintiff.
 
The MCC agreed with the Bailiff's Court, stating that the expression "such protection" under the Specific Mechanism as stated in the Treaty of Accession is to be interpreted as the patent protection being one continuous string of protection. Furthermore, the MCC held that the paediatric extension is not dependent on a product being indicated for the treatment of children, but only on whether or not the drug is tested for children.
 
Therefore, the protection would not terminate until the paediatric extension had expired.

Note: See our update on CJEU´s Advocate General opinion from 12 november 2014.