02009R0469 — EN — 01.07.2019 — 002.001
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REGULATION (EC) No 469/2009 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 6 May 2009 concerning the supplementary protection certificate for medicinal products (Codified version) (OJ L 152 16.6.2009, p. 1) |
Amended by:
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Official Journal |
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No |
page |
date |
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REGULATION (EU) 2019/933 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 20 May 2019 |
L 153 |
1 |
11.6.2019 |
Amended by:
L 112 |
21 |
24.4.2012 |
REGULATION (EC) No 469/2009 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
of 6 May 2009
concerning the supplementary protection certificate for medicinal products
(Codified version)
(Text with EEA relevance)
Article 1
Definitions
For the purposes of this Regulation, the following definitions shall apply:
‘medicinal product’ means any substance or combination of substances presented for treating or preventing disease in human beings or animals and any substance or combination of substances which may be administered to human beings or animals with a view to making a medical diagnosis or to restoring, correcting or modifying physiological functions in humans or in animals;
‘product’ means the active ingredient or combination of active ingredients of a medicinal product;
‘basic patent’ means a patent which protects a product as such, a process to obtain a product or an application of a product, and which is designated by its holder for the purpose of the procedure for grant of a certificate;
‘certificate’ means the supplementary protection certificate;
‘application for an extension of the duration’ means an application for an extension of the duration of the certificate pursuant to Article 13(3) of this Regulation and Article 36 of Regulation (EC) No 1901/2006 of the European Parliament and of the Council of 12 December 2006 on medicinal products for paediatric use ( 1 );
‘maker’ means the person, established in the Union, on whose behalf the making of a product, or a medicinal product containing that product, for the purpose of export to third countries or for the purpose of storing, is carried out.
Article 2
Scope
Any product protected by a patent in the territory of a Member State and subject, prior to being placed on the market as a medicinal product, to an administrative authorisation procedure as laid down in Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to medicinal products for human use ( 2 ) or Directive 2001/82/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to veterinary medicinal products ( 3 ) may, under the terms and conditions provided for in this Regulation, be the subject of a certificate.
Article 3
Conditions for obtaining a certificate
A certificate shall be granted if, in the Member State in which the application referred to in Article 7 is submitted and at the date of that application:
the product is protected by a basic patent in force;
a valid authorisation to place the product on the market as a medicinal product has been granted in accordance with Directive 2001/83/EC or Directive 2001/82/EC, as appropriate;
the product has not already been the subject of a certificate;
the authorisation referred to in point (b) is the first authorisation to place the product on the market as a medicinal product.
Article 4
Subject matter of protection
Within the limits of the protection conferred by the basic patent, the protection conferred by a certificate shall extend only to the product covered by the authorisation to place the corresponding medicinal product on the market and for any use of the product as a medicinal product that has been authorised before the expiry of the certificate.
Article 5
Effects of the certificate
By way of derogation from paragraph 1, the certificate referred to in paragraph 1 shall not confer protection against certain acts which would otherwise require the consent of the holder of the certificate (‘the certificate holder’), if the following conditions are met:
the acts comprise:
the making of a product, or a medicinal product containing that product, for the purpose of export to third countries; or
any related act that is strictly necessary for the making, in the Union, referred to in point (i), or for the actual export; or
the making, no earlier than six months before the expiry of the certificate, of a product, or a medicinal product containing that product, for the purpose of storing it in the Member State of making, in order to place that product, or a medicinal product containing that product, on the market of Member States after the expiry of the corresponding certificate; or
any related act that is strictly necessary for the making, in the Union, referred to in point (iii), or for the actual storing, provided that such related act is carried out no earlier than six months before the expiry of the certificate.
the maker, through appropriate and documented means, notifies the authority referred to in Article 9(1) in the Member State in which that making is to take place, and informs the certificate holder, of the information listed in paragraph 5 of this Article no later than three months before the start date of the making in that Member State, or no later than three months before the first related act, prior to that making, that would otherwise be prohibited by the protection conferred by a certificate, whichever is the earlier;
if the information listed in paragraph 5 of this Article changes, the maker notifies the authority referred to in Article 9(1) and informs the certificate holder, before those changes take effect;
in the case of products, or medicinal products containing those products, made for the purpose of export to third countries, the maker ensures that a logo, in the form set out in Annex -I, is affixed to the outer packaging of the product, or the medicinal product containing that product, referred to in point (a)(i) of this paragraph, and, where feasible, to its immediate packaging;
the maker complies with paragraph 9 of this Article and, if applicable, with Article 12(2).
The information to be provided by the maker for the purposes of point (b) of paragraph 2 shall be as follows:
the name and address of the maker;
an indication of whether the making is for the purpose of export, for the purpose of storing, or for the purpose of both export and storing;
the Member State in which the making and, if applicable, also the storing is to take place, and the Member State in which the first related act, if any, prior to that making is to take place;
the number of the certificate granted in the Member State of making, and the number of the certificate granted in the Member State of the first related act, if any, prior to that making; and
for medicinal products to be exported to third countries, the reference number of the marketing authorisation, or the equivalent of such authorisation, in each third country of export, as soon as it is publicly available.
The maker shall ensure, through appropriate and documented means, that any person in a contractual relationship with the maker who performs acts falling under point (a) of paragraph 2 is fully informed and aware of the following:
that those acts are subject to paragraph 2;
that the placing on the market, import or re-import of the product, or the medicinal product containing that product, referred to in point (a)(i) of paragraph 2 or the placing on the market of the product, or the medicinal product containing that product, referred to in point (a)(iii) of paragraph 2 could infringe the certificate referred to in paragraph 2 where, and for as long as, that certificate applies.
Paragraph 2 shall also apply to certificates that have been applied for before 1 July 2019 and that take effect on or after that date. Paragraph 2 shall only apply to such certificates from 2 July 2022.
Paragraph 2 shall not apply to certificates that take effect before 1 July 2019.
Article 6
Entitlement to the certificate
The certificate shall be granted to the holder of the basic patent or his successor in title.
Article 7
Application for a certificate
Article 8
Content of the application for a certificate
The application for a certificate shall contain:
a request for the grant of a certificate, stating in particular:
the name and address of the applicant;
if he has appointed a representative, the name and address of the representative;
the number of the basic patent and the title of the invention;
the number and date of the first authorisation to place the product on the market, as referred to in Article 3(b) and, if this authorisation is not the first authorisation for placing the product on the market in the Community, the number and date of that authorisation;
a copy of the authorisation to place the product on the market, as referred to in Article 3(b), in which the product is identified, containing in particular the number and date of the authorisation and the summary of the product characteristics listed in Article 11 of Directive 2001/83/EC or Article 14 of Directive 2001/82/EC;
if the authorisation referred to in point (b) is not the first authorisation for placing the product on the market as a medicinal product in the Community, information regarding the identity of the product thus authorised and the legal provision under which the authorisation procedure took place, together with a copy of the notice publishing the authorisation in the appropriate official publication;
where the application for a certificate includes a request for an extension of the duration:
a copy of the statement indicating compliance with an agreed completed paediatric investigation plan as referred to in Article 36(1) of Regulation (EC) No 1901/2006;
where necessary, in addition to the copy of the authorisation to place the product on the market as referred to in point (b), proof of possession of authorisations to place the product on the market of all other Member States, as referred to in Article 36(3) of Regulation (EC) No 1901/2006.
Article 9
Lodging of an application for a certificate
The application for an extension of the duration of a certificate shall be lodged with the competent authority of the Member State concerned.
Notification of the application for a certificate shall be published by the authority referred to in paragraph 1. The notification shall contain at least the following information:
the name and address of the applicant;
the number of the basic patent;
the title of the invention;
the number and date of the authorisation to place the product on the market, referred to in Article 3(b), and the product identified in that authorisation;
where relevant, the number and date of the first authorisation to place the product on the market in the Community;
where applicable, an indication that the application includes an application for an extension of the duration.
Article 10
Grant of the certificate or rejection of the application for a certificate
Article 11
Publication
Notification of the fact that a certificate has been granted shall be published by the authority referred to in Article 9(1). The notification shall contain at least the following information:
the name and address of the holder of the certificate;
the number of the basic patent;
the title of the invention;
the number and date of the authorisation to place the product on the market referred to in Article 3(b) and the product identified in that authorisation;
where relevant, the number and date of the first authorisation to place the product on the market in the Community;
the duration of the certificate.
Article 12
Fees
Article 13
Duration of the certificate
Article 14
Expiry of the certificate
The certificate shall lapse:
at the end of the period provided for in Article 13;
if the certificate holder surrenders it;
if the annual fee laid down in accordance with Article 12 is not paid in time;
if and as long as the product covered by the certificate may no longer be placed on the market following the withdrawal of the appropriate authorisation or authorisations to place on the market in accordance with Directive 2001/83/EC or Directive 2001/82/EC. The authority referred to in Article 9(1) of this Regulation may decide on the lapse of the certificate either of its own motion or at the request of a third party.
Article 15
Invalidity of the certificate
The certificate shall be invalid if:
it was granted contrary to the provisions of Article 3;
the basic patent has lapsed before its lawful term expires;
the basic patent is revoked or limited to the extent that the product for which the certificate was granted would no longer be protected by the claims of the basic patent or, after the basic patent has expired, grounds for revocation exist which would have justified such revocation or limitation.
Article 16
Revocation of an extension of the duration
Article 17
Notification of lapse or invalidity
Article 18
Appeals
The decisions of the authority referred to in Article 9(1) or of the bodies referred to in Articles 15(2) and 16(2) taken under this Regulation shall be open to the same appeals as those provided for in national law against similar decisions taken in respect of national patents.
Article 19
Procedure
Article 20
Additional provisions relating to the enlargement of the Community
Without prejudice to the other provisions of this Regulation, the following provisions shall apply:
any medicinal product protected by a valid basic patent and for which the first authorisation to place it on the market as a medicinal product was obtained after 1 January 2000 may be granted a certificate in Bulgaria, provided that the application for a certificate was lodged within six months from 1 January 2007;
any medicinal product protected by a valid basic patent in the Czech Republic and for which the first authorisation to place it on the market as a medicinal product was obtained:
in the Czech Republic after 10 November 1999 may be granted a certificate, provided that the application for a certificate was lodged within six months of the date on which the first market authorisation was obtained;
in the Community not earlier than six months prior to 1 May 2004 may be granted a certificate, provided that the application for a certificate was lodged within six months of the date on which the first market authorisation was obtained;
any medicinal product protected by a valid basic patent and for which the first authorisation to place it on the market as a medicinal product was obtained in Estonia prior to 1 May 2004 may be granted a certificate, provided that the application for a certificate was lodged within six months of the date on which the first market authorisation was obtained or, in the case of those patents granted prior to 1 January 2000, within the six months provided for in the Patents Act of October 1999;
any medicinal product protected by a valid basic patent and for which the first authorisation to place it on the market as a medicinal product was obtained in Cyprus prior to 1 May 2004 may be granted a certificate, provided that the application for a certificate was lodged within six months of the date on which the first market authorisation was obtained; notwithstanding the above, where the market authorisation was obtained before the grant of the basic patent, the application for a certificate must be lodged within six months of the date on which the patent was granted;
any medicinal product protected by a valid basic patent and for which the first authorisation to place it on the market as a medicinal product was obtained in Latvia prior to 1 May 2004 may be granted a certificate. In cases where the period provided for in Article 7(1) has expired, the possibility of applying for a certificate shall be open for a period of six months starting no later than 1 May 2004;
any medicinal product protected by a valid basic patent applied for after 1 February 1994 and for which the first authorisation to place it on the market as a medicinal product was obtained in Lithuania prior to 1 May 2004 may be granted a certificate, provided that the application for a certificate was lodged within six months from 1 May 2004;
any medicinal product protected by a valid basic patent and for which the first authorisation to place it on the market as a medicinal product was obtained after 1 January 2000 may be granted a certificate in Hungary, provided that the application for a certificate was lodged within six months from 1 May 2004;
any medicinal product protected by a valid basic patent and for which the first authorisation to place it on the market as a medicinal product was obtained in Malta prior to 1 May 2004 may be granted a certificate. In cases where the period provided for in Article 7(1) has expired, the possibility of applying for a certificate shall be open for a period of six months starting no later than 1 May 2004;
any medicinal product protected by a valid basic patent and for which the first authorisation to place it on the market as a medicinal product was obtained after 1 January 2000 may be granted a certificate in Poland, provided that the application for a certificate was lodged within six months starting no later than 1 May 2004;
any medicinal product protected by a valid basic patent and for which the first authorisation to place it on the market as a medicinal product was obtained after 1 January 2000 may be granted a certificate in Romania. In cases where the period provided for in Article 7(1) has expired, the possibility of applying for a certificate shall be open for a period of six months starting no later than 1 January 2007;
any medicinal product protected by a valid basic patent and for which the first authorisation to place it on the market as a medicinal product was obtained in Slovenia prior to 1 May 2004 may be granted a certificate, provided that the application for a certificate was lodged within six months from 1 May 2004, including in cases where the period provided for in Article 7(1) has expired;
any medicinal product protected by a valid basic patent and for which the first authorisation to place it on the market as a medicinal product was obtained in Slovakia after 1 January 2000 may be granted a certificate, provided that the application for a certificate was lodged within six months of the date on which the first market authorisation was obtained or within six months of 1 July 2002 if the market authorisation was obtained before that date;
any medicinal product protected by a valid basic patent and for which the first authorisation to place it on the market as a medicinal product was obtained after 1 January 2003 may be granted a certificate in Croatia, provided that the application for a certificate is lodged within six months from the date of accession.
Article 21
Transitional provisions
With regard to Austria, Finland and Sweden, this Regulation shall not apply to certificates granted in accordance with their national legislation before 1 January 1995.
Article 21a
Evaluation
No later than five years after the date referred to in Article 5(10), and every five years thereafter, the Commission shall carry out an evaluation of Article 5(2) to (9) and Article 11 in order to assess whether the objectives of those provisions have been achieved, and present a report on the main findings to the European Parliament, the Council and the European Economic and Social Committee. In addition to evaluating the impact of the exception of making for the purpose of export, special account shall be taken of the effects of making for the purpose of storing in order to place that product, or a medicinal product containing that product, on the market of Member States after the expiry of the corresponding certificate on access to medicines and on public health expenditure, and of whether the waiver and in particular the period provided for in point (a)(iii) of Article 5(2) is sufficient to achieve the objectives referred to in Article 5, including public health.
Article 22
Repeal
Regulation (EEC) No 1768/92, as amended by the acts listed in Annex I, is repealed.
References to the repealed Regulation shall be construed as references to this Regulation and shall be read in accordance with the correlation table in Annex II.
Article 23
Entry into force
This Regulation shall enter into force on the 20th day following its publication in the Official Journal of the European Union.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
ANNEX I
REPEALED REGULATION WITH LIST OF ITS SUCCESSIVE AMENDMENTS
(referred to in Article 22)
Council Regulation (EEC) No 1768/92 (OJ L 182, 2.7.1992, p. 1) |
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Annex I, point XI.F.I, of the 1994 Act of Accession (OJ C 241, 29.8.1994, p. 233) |
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Annex II, point 4.C.II, of the 2003 Act of Accession (OJ L 236, 23.9.2003, p. 342) |
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Annex III, point 1.II, of the 2005 Act of Accession (OJ L 157, 21.6.2005, p. 56) |
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Regulation (EC) No 1901/2006 of the European Parliament and of the Council (OJ L 378, 27.12.2006, p. 1) |
Only Article 52 |
ANNEX -I
Logo
This logo shall appear in black and in such a size as to be sufficiently visible.
ANNEX -Ia
Standard form for notification pursuant to points (b) and (c) of Article 5(2)
Tick the appropriate box |
□ New notification □ Update of an existing notification |
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(a) Name and address of the maker |
… |
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(b) Purpose of making |
□ Export □ Storing □ Export and storing |
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(c) Member State in which making is to take place and Member State in which first related act (if any) prior to making is to take place |
Member State of making |
… |
(Member State of first related act (if any)) |
… |
|
(d) Number of certificate granted in the Member State of making and number of certificate granted in Member State of first related act (if any) prior to making |
Certificate of Member State of making |
… |
(Certificate of Member State of first related act (if any)) |
… |
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(e) For medicinal products to be exported to third countries, reference number of marketing authorisation, or the equivalent of such authorisation, in each third country of export |
… |
|
… |
||
… |
ANNEX II
CORRELATION TABLE
Regulation (EEC) No 1768/92 |
This Regulation |
— |
Recital 1 |
Recital 1 |
Recital 2 |
Recital 2 |
Recital 3 |
Recital 3 |
Recital 4 |
Recital 4 |
Recital 5 |
Recital 5 |
Recital 6 |
Recital 6 |
Recital 7 |
Recital 7 |
Recital 8 |
Recital 8 |
Recital 9 |
Recital 9 |
Recital 10 |
Recital 10 |
— |
Recital 11 |
— |
Recital 12 |
— |
Recital 13 |
Recital 11 |
Article 1 |
Article 1 |
Article 2 |
Article 2 |
Article 3, introductory wording |
Article 3, introductory wording |
Article 3, point (a) |
Article 3, point (a) |
Article 3, point (b), first sentence |
Article 3, point (b) |
Article 3, point (b), second sentence |
— |
Article 3, points (c) and (d) |
Article 3, points (c) and (d) |
Articles 4 to 7 |
Articles 4 to 7 |
Article 8(1) |
Article 8(1) |
Article 8(1a) |
Article 8(2) |
Article 8(1b) |
Article 8(3) |
Article 8(2) |
Article 8(4) |
Articles 9 to 12 |
Articles 9 to 12 |
Article 13(1), (2) and (3) |
Article 13(1), (2) and (3) |
Articles 14 and 15 |
Articles 14 and 15 |
Article 15a |
Article 16 |
Articles 16, 17 and 18 |
Articles 17, 18 and 19 |
Article 19 |
— |
Article 19a, introductory wording |
Article 20, introductory wording |
Article 19a, point (a), points (i) and (ii) |
Article 20, point (b), introductory wording, points (i) and (ii) |
Article 19a, point (b) |
Article 20, point (c) |
Article 19a, point (c) |
Article 20, point (d) |
Article 19a, point (d) |
Article 20, point (e) |
Article 19a, point (e) |
Article 20, point (f) |
Article 19a, point (f) |
Article 20, point (g) |
Article 19a, point (g) |
Article 20, point (h) |
Article 19a, point (h) |
Article 20, point (i) |
Article 19a, point (i) |
Article 20, point (k) |
Article 19a, point (j) |
Article 20, point (l) |
Article 19a, point (k) |
Article 20, point (a) |
Article 19a, point (l) |
Article 20, point (j) |
Article 20 |
Article 21 |
Article 21 |
— |
Article 22 |
Article 13(4) |
— |
Article 22 |
Article 23 |
Article 23 |
— |
Annex I |
— |
Annex II |
( 1 ) OJ L 378, 27.12.2006, p. 1.
( 2 ) OJ L 311, 28.11.2001, p. 67.
( 3 ) OJ L 311, 28.11.2001, p. 1.
( 4 ) Commission Delegated Regulation (EU) 2016/161 of 2 October 2015 supplementing Directive 2001/83/EC of the European Parliament and of the Council by laying down detailed rules for the safety features appearing on the packaging of medicinal products for human use (OJ L 32, 9.2.2016, p. 1).