Gene patent upheld by British Supreme Court

7 November 2011

The British Supreme Court has upheld the validity of a patent for a gene sequence held by the company Human Genome Sciences.
The patent had been contested by rival company Eli Lilly on the basis that the broad claims of potential uses for the sequence of the neutrokine-alpha gene made in the patent application did not prove the industrial application of the sequence. A specific medical application was subsequently been identified by HGS in partnership with GlaxoSmithKline, and Benlysta (belimumab) was approved as a new treatment for the autoimmune disease lupus in Europe and the US earlier this year.
The European Patent Office earlier denied the same appeal against the patent by Eli Lilly, saying that the disclosure of industrial application was sufficient; the British Court of Appeal disagreed. However, the Supreme Court has now upheld the patent in relation to these claims, and criticised the Court of Appeal for not having followed EPO case law in reaching their decision.

Comment: This decision has been hailed as good news for British bioscience research, particularly by strengthening the scope for ‘blue-sky’ research to yield potentially valuable intellectual property (increasing scope for research investment) and by affirming close alignment between British and European patent law in the absence of good reasons for divergence.  

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