EPO – T0018/09 – Cooperation between Board of Appeal and National Court / acceleration of appeal proceedings

Posted: January 12th, 2010

Human Genome Sciences (patentee) v. Eli Lilly (opponent), Cooperation between Board of Appeal and National Court / Acceleration of appeal proceedings, EPO Board of Appeal, 21 October 2009, Case No. T0018/09

In this case, the
UK Court of Appeals requested the Board of Appeal to accelerate the parallel EPO
appeal proceedings in order to have that appeal decided prior to the UK appeal
hearing (which was then scheduled for December 2009,
see Eli Lilly and Company v. Human Genome Sciences, Inc. [2008] EWCA Civ 168).

The Board acknowledged the practical and economic benefit of the national court's request and stated that it agrees entirely with the national appeal court that parties to such parallel proceedings should inform both tribunals of the position as early as possible and ask the appropriate tribunal for acceleration in order to avoid duplication of proceedings. Whether acceleration is requested by one party, or both or all parties in agreement, or by a national court, all parties must accept a strict procedural framework including short time limits. It must also be understood that acceleration can have no effect on the equal treatment of all parties and cannot confer any advantage on any one party.


The Board upheld the patent relating to a neutrokine alpha nucleic acid encoding the neutrokine alpha polypeptide and an antibody binding thereto in amended form. As more often in biotech-cases, an important part of the case dealt with sufficiency of disclosure and industrial applicability. Addressing the close interplay between these to requirements for patentability, the Board held that a patent may only be objected to for lack of sufficiency of disclosure if there are serious doubts, substantiated by verifiable facts (cf. T 19/90, OJ EPO 1990, 476). It would not be justified and unfair to set a different standard of proof in respect of Article 57 EPC. This standard of proof was not met and consequently, the patent was upheld.

Read the decision (in English) here.

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