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Why some SPC expiry dates moved by a few days: the notification-date rule, and how to check a register entry

Since the Court of Justice's 2015 Seattle Genetics ruling, the SPC term for a centrally authorised product is counted from the day the holder was notified of the Commission's decision, not the decision itself. The difference is days, every SPC on that authorisation moves by them, and the registers did not all correct themselves. How the rule works, what Incyte added, and how to check.

Published 24 October 2026 · Last reviewed 24 October 2026 · MPA Business Services

The rule

An SPC’s term is the time between the filing of the basic patent and the first authorisation to place the product on the market in the EU, less five years, capped at five. For a product authorised nationally, the authorisation date is the date of the national decision. For a centrally authorised product the European Commission takes a decision and then notifies the company, and the two dates differ by a few days.

In Seattle Genetics (October 2015) the Court of Justice held that the date that counts is the notification date, because the company cannot market the product until it has been told it may. Every SPC calculated from the decision date was therefore a few days too short.

Centralised authorisation, 2019Commission decisionMon 10 Juneholder notifiedThu 13 June3 daysSPC expiry, 2034counted from the decision10 Junecounted from notification13 June (correct)3 days later+ termSPC term = first EU authorisation − patent filing − 5 years (max 5). The authorisation date is the notification date, so every day betweendecision and notification is a day added at the far end, in every country where the SPC was granted on that authorisation.
Illustrative dates. The gap is typically two to five days. It only arises where the first EU authorisation was a centralised one; a national authorisation's date is the date of the national decision.

What it changed, and what it did not

The number of days is small, two to five in most cases, and the money is not: on a product selling a million euros a day in a country, three days of SPC is three million euros, and the generic that launches on the register’s old date is, for those days, infringing.

The ruling applies to every SPC whose term is calculated from a centralised authorisation, in every member state and, through the retained law, in the UK. It does not apply where the first EU authorisation was national, and it does not change the SPC start date, which is the patent’s expiry; only the end moves.

Incyte: correcting certificates already granted

Offices asked whether they could change the expiry date on certificates granted before 2015. In Incyte (December 2017) the Court of Justice said yes: the holder of a granted SPC may apply to the national office to rectify its duration at any time before it expires, where the original calculation used the decision date. Some offices then corrected on request, the UK IPO among them; some corrected of their own motion; some still show the old date unless the holder has asked. The same certificate can therefore carry the corrected date in one country and the uncorrected one in another.

How to check a register entry

  1. Find the first EU authorisation cited on the SPC (INID code 93). If its number begins EU/1/, it is centralised and the rule applies.
  2. Look the product up in the Commission’s Union Register, which shows the decision date and the notification date for the initial authorisation.
  3. Recompute: notification date, minus the patent’s filing date, minus five years, capped at five, added to the patent’s expiry date.
  4. Compare with the expiry shown on the national register. If the register shows the decision-date result, the certificate may be eligible for correction, and the holder may already have asked in other countries.
  5. Add the paediatric extension, if granted, after the corrected date.

The same arithmetic in the other direction catches a second class of error: certificates whose cited authorisation is a later one than the true first in the EU (a national authorisation that preceded the centralised one, or an earlier authorisation of the same active ingredient in a different product), which can make an SPC longer than it should be and open to challenge.

What it means

For a generics or launch planner, the launch date is the corrected date, whether or not the register you are reading has caught up; launching on an uncorrected date is a few days of infringement that a court will not treat as trivial.

For a parallel trader and a buyer, the practical effect is nil most of the time and sharp occasionally: a stock decision timed to the register’s expiry can be a few days early.

MPA Search applies the notification-date rule in its own SPC expiry calculation for centrally authorised products, records which date the national register shows, and flags the ones that differ.

Sources

General information, not legal advice. The position for any particular product and country must be checked against the registers.

The position in every country, kept current

MPA Search holds the patent, SPC, licence and price position for products across the UK and Europe, with the reference to the original record. Book a free demonstration.