The Requirements of Art. 3(a) and (c) SPC Regulation and Post-grant Amended Patents

SPCs are linked to a basic patent and presuppose the existence of such a patent. The requirements for the grant of an SPC in Art. 3(a) and (c) SPC Regulation depend on the basic patent and its content. However, patents can be amended, even after they have been granted. It is conceivable that a patent amendment could influence the assessment of these requirements and thus the granting or validity of an SPC. This issue is the subject of this contribution. It is approached by first analysing the requirements for the grant of an SPC in Art. 3(a) and (c) SPC Regulation, in particular their interpretation by the CJEU, as well as the procedural and substantive requirements for a patent amendment. Based on this, the interaction between these two areas of law is examined, recognising that there are similarities. Different potential scenarios are discussed with the result that the requirements for the grant of an SPC in Art. 3(a) and (c) SPC Regulation, in their current interpretation by the CJEU, are suitable to withstand a patent amendment and cannot be circumvented by such an amendment.