Biotech companies hit by patent ruling in UK

The biotech companiesies got a negative decision by the UK High Court in a decision that may set a higher threshold for intellectual property protection.

Eli Lilly applied to revoke European, held by the defendant HGS. The Patent discloses the nucleotide and amino acid sequence of a novel member of the TNF ligand superfamily which it calls Neutrokine-a. The application for the Patent was filed on 25 October 1996 and it was granted on 17 August 2005. It is currently under opposition in the EPO. Oral proceedings took place before the Opposition Division in June 2008 and the Patent was revoked, apparently on the basis that the claimed invention lacked any inventive step and constituted a claim to an arbitrary member of the TNF ligand superfamily without a known function. The Opposition Division declined to provide further reasoning during the oral proceedings and a written decision is awaited. HGS intends to file an appeal and the decision of the Opposition Division will be suspended in the meantime.
The court opined that the Patent is invalid for lack of industrial applicability, insufficiency and obviousness. Whatever the merit of the discovery of Neutrokine-a, the specification contains no more than speculation about how it might be useful. It does not teach the person skilled in the art how to solve any technical problem and its teaching as to the range of applications of Neutrokine-a is implausible. Moreover, the claims to therapeutic and diagnostic products are insufficient in any event.

(Link to CourtOpinion)

(Link to full article by Financial times)