Europe’s highest Court, the Court of Justice of the European Union (CJEU), has held that a ‘safener’ can be the subject of a Supplementary Protection Certificate (SPC).

SPCs are a form of Patent Term Extension available in Europe which extend the protection of a patented active ingredient, or combination of ingredients, in a pharmaceutical or plant protection product.

Agrochemical company, Bayer CropScience AG, appealed the German Patent and Trademark Office’s (DPMA) refusal to grant it an SPC for a ‘safener’. The CJEU was asked by the German Court to decide whether or not a ‘safener’ is an ‘active substance’ under the SPC Regulation for Plant Protection Products EU1610/96.

According to the CJEU, ‘safeners’ are compounds added to a herbicide that “prevent the harmful effects of a herbicidal active substance”, in order to increase its effectiveness.

The CJEU said: “The answer to the question whether a safener is an active substance, therefore depends on whether that substance has a toxic, phytotoxic or plant protection action of its own… If that is the case, it falls within the concept of a ‘product’, and may therefore, give rise to the issue of an SPC.”.

The CJEU ruling must now be interpreted and applied by the national court in question. That said, this appears to be a positive decision for the agrochemical industry.