Life Sciences Newsletter, April 2009 - Part One.

Mondaq Business Briefing › Nbr. 2009, January 2009

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Life Sciences Newsletter, April 2009 - Part One.

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> INTELLECTUAL PROPERTY

Industrial Application

By Tracy Ko

The English Patents Court case of Eli Lilly & Co v Human Genome Sciences Inc [2008] EWHC 1903 (Pat) gives guidance on the requirement that an invention must have industrial application in order to be patentable.

The case concerned a Human Genome Sciences Inc ("HGS") European patent for the nucleotide and amino acid sequence of Neutrokine-a (the "Patent"), which was a novel member of the Tumour Necrosis Factor cytokines ("TNF") superfamily (a grouping of proteins that act to cause inflammation in the human body).

The sequence was found through bioinformatics, whereby computers identify new DNA sequences for proteins by making comparisons to similar known sequences, rather than by traditional laboratory methods. HGS filed a patent application soon after the sequence was determined, without carrying out any further research to explore its function, activity or potential use.

Eli Lilly & Co ("Lilly") applied to revoke the patent. Lilly's arguments included that the Patent did not disclose an invention capable of industrial application and on the grounds of insufficiency.

The judge, Kitchin J, reviewed the limited amount of UK, EU and US law on industrial application and the European Directive on the legal protection of biotechnological inventions (Directive 98/44/EC). He set down the following principles:

'Industrial' must be construed broadly and does not need to be conducted for profit.

The c...

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