EPLAW PATENT BLOG

UK – Eli Lilly v Human Genome Sciences Inc / Appeal

Posted: February 9th, 2010

LogoHGSI Eli Lilly and Company v. Human Genome Sciences inc, High court of Justice, Court of Appeal (Civil Division), London, UK, 9 February 2010, Case No. [2010] EWCA Civ 33

The English Court of Appeal dismissed HGS's appeal against the decision that HGS's patent, which related to a protein it called Neutrokine-α, was invalid.  It held that the invention was not "susceptible of industrial application" so as to satisfy the requirements of Article 57 EPC.  Specifically, the fact that numerous different – in some cases contradictory – possible applications of Neutrokine-α were claimed in the patent pointed to the conclusion that the claims were purely speculative.  Moreover, while Neutrokine-α belonged to a superfamily of proteins which shared certain properties, members of this superfamily had differing, sometimes unique, characteristics and only one member has been found to have any therapeutic application. 

This decision was contrary to that given earlier in parallel EPO proceedings.  Jacob LJ noted that the different decisions resulted from two different readings of the facts, rather than any issue of law.  In such circumstances the Court was not bound to follow the EPO's conclusions.

Read the judgment (in English) here.

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