Yeda application heads for ECJ on indirect/contributory infringement issue

The SPC Blog thanks Tom Mitcheson (3 New Square) for letting us know that the Court of Appeal for England and Wales is making a further reference to the Court of Justice of the European Union for a preliminary ruling in Yeda Research and Development Company Ltd and Aventis Holdings Inc v Comptroller General of Patents (for earlier litigation on this matter see the SPC Blog here).

By an order of 8 October 2010 (here) the Court of Appeal seeks further guidance relating to Article 3(a) of Regulation 469/2009. It seeks to ask, in particular:

"If the criteria for deciding whether a product is 'protected by a basic patent in force' under Article 3(a) ... include or consist of an assessment of whether the supply of the product would infringe the basic patent, does it make any difference to the analysis if infringement is by way of indirect or contributory infringement based on Article 26 of the Community Patent Convention, enacted as s.60(2) Patents Act 1077 in the UK, and the corresponding provisions in the laws of other Member States of the Community?"

We've not yet had time to read the order in full (it runs to 17 pages) but will post further on this reference if it seems appropriate to do so.