Spain Loses EU Drug Patent Court Case

Spain has lost a case in the European Court of Justice over drug patents. The Spanish authorities had sought annulment of the European Union regulation concerning the creation of a complementary certificate of protection for pharmaceuticals (No 1768/92), arguing that member states had not ceded sovereignty in intellectual property, and pleading Articles 222 and 36 of the Treaty of Rome.

The Court confirmed that in regard to drug patents, the legal position within the EU had not yet been harmonized, and that under these conditions the national legislature could determine the nature and degree of protection afforded by the patent. however, this did not mean that a member state could take measures that infringed the basic EU principle of the free movement of goods.

The Court said it envisaged harmonization of national measures in this area. it also judged that Article 36 did not intend to reserve exclusive competence in intellectual property matters to member states, and that neither Articles 222 or 36 allowed a member state to legislate on patents in such a way as to exclude all EU action.