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UK Court of Appeal rules on HGS gene patent

UK Court of Appeal rules on HGS gene patent

25/02/10

The UK Court of Appeal has issued its judgment on the validity of Human Genome Sciences’ (HGS) gene sequence patent, upholding the Patents Court’s decision which invalidated the patent for lack of industrial application.

HGS' patent, EP(UK) 0939804, disclosed the nucleotide and amino acid sequences of a novel member of the TNF (tissue necrosis factor) ligand superfamily which HGS called Neutrokine-a. Neutrokine- a was identified using bioinformatics which was in its infancy at the time. Bioinformatics involves using computers to compare sequence data with databases of sequences of known genes and proteins. HGS’s patent application was filed disclosing possible functions of the protein based on its sequence homology to known TNF ligands.

Lord Justice Jacob ruled that the uses for neutrokine- as proposed in the patent were not plausible at the time it was filed and ahead of a research program to ascertain any real industrial uses. As a consequence, the patent was deemed not to be susceptible of industrial application and was invalid.

While this ruling seems to clash with decision T18/09 of the Technical Board of Appeal of the European Patent Office, this has been explained as being due, in part, to the fact that the EPO was working with different evidence. LJ Jacob also took the opportunity to state that the UK courts were not bound to follow the TBA's findings of fact or give deference to them.