NL – Bayer Healthcare v. Abbott

Posted: October 20th, 2010

Bayer Healthcare LLC v. Abbott B.V., District Court The Hague, The Netherlands, 20 October 2010, Case No. 356145 HA ZA 10-57, with thanks to Geert Theuws, Howrey, for sending in the judgment

The District Court of The Hague invalidates the Dutch part of Bayer's patent due to insufficiency. Bayer argues that Abbott's high affinity monoclonal TNF-alpha antibody Humira falls under the claims of its patent that relates to human monoclonal TNF-alpha antibodies. However, the method disclosed in Bayer's patent does not enable the skilled person to make such high affinity monoclonal antibodies. The court explains that it deviates from the decision of the TBA regading Bayer's patent because the TBA concluded that the claim did not see on high affinity antibodies. Now Bayer argues that high affinity antibodies do fall under the claim and the court finds that the claims do encompass high affinity antibodies but that the patent does not enable the skilled person to make these. Therefore the court finds that the patent is invalid for insufficiency, because the claims are too broad. The court finds further support for this in the decision T 1063/06, because in this situation the skilled person cannot carry out Bayer's invention within the entire scope claimed without undue burden.
Read the judgment (in Dutch) here.

Head note: Paul van Dongen

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