Request for a preliminary ruling from the Bundespatentgericht (Germany) lodged on 21 November 2017 — QH

(Case C-650/17)

Language of the case: German

Referring court

Bundespatentgericht

Parties to the main proceedings

Applicant: QH

Questions referred

Is a product protected by a basic patent in force pursuant to Article 3(a) of Regulation (EC) No 469/2009 ¹ only if it forms part of the subject matter of protection defined by the claims and is thus provided to the expert as a specific embodiment?

Is it not therefore sufficient for the requirements of Article 3(a) of Regulation (EC) No 469/2009 if the product in question satisfies the general functional definition of a class of active ingredients in the claims, but is not otherwise indicated in individualised form as a specific embodiment of the method protected by the basic patent?

Is a product not protected by a basic patent in force under Article 3(a) of Regulation (EC) No 469/2009 if it is covered by the functional definition in the claims, but was developed only after the filing date of the basic patent as a result of an independent inventive step?

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¹ 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 ) (OJ 2009 L 152, p. 1).