Current Law Journal Content
Washington & Lee Law School
Current Law Journal Content
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Bio-Science Law Review
Volume 10, Issue 6, 2009
PLANT VARIETY RIGHTS REACH THE EUROPEAN COURT OF JUSTICE CASE C-38/x9 P
In the first Community plant variety right ("CPVR") case to be heard before the European Court of Justice ("ECJ"), Reddie & Grose, Cambridge Advocate General Mazdk has delivered an Opinion dated 3 December 2009 on an appeal against a judgement by the European Court of First Instance ("CFI") which confirmed a decision of the Community Plant Variety Office ("CPVO) Board of Appeal to reject Mr Ralf Schroder's CPVR application for the Pleciranthus ornatus candidate variety "SUMCOL 01". The Advocate General has recommended that the ECJ uphold the CFI's decision which concerns the "distinctive character" of the candidate variety and factors which may be taken into consideration in order to determine whether a reference variety against which distinctness is assessed is a matter of "common knowledge". The Opinion also sets out the scope of judicial review in cases concerning the grant of CPVRs. This scope is determined by principles established by case law for parallel rights such as Community trademarks. It is expected although not evitable that the ECJ will follow the Advocate General's Opinion. The Opinion provides guidance for CPVR applicants in how to challenge the CPVO or its Board of Appeal when facing technical objections
COURT OF APPEAL CLARIFIES THE LAW ON SELECTION PATENTS ELI LILLY & CO. v DR REDDY'S LABORATORIES (UK) LIMITED
The Court of Appeal upheld the decision of the High Court that Eli Lilly's patent concerning olanzapine, an anti-psychotic agent used for the treatment of schizophrenia, is valid. Dr Reddy's Laboratories (UK) Limited had sought revocation on the grounds of lack of novelty and inventive step. The decision confirms that the UK is now aligned with the European Patent Office on the assessment of obviousness of selection patents: an invention comprising a selection from possible alternatives for the solution of a technical problem may involve an inventive step provided that the selection is not arbitrary but is instead justified by the technical contribution to the art.
INVALIDITY FOR LACK OF INDUSTRIAL APPLICATION: THE COURT OF APPEAL HANDS DOWN ITS DECISION IN ELI LILY & CO. v HUMAN GENOME SCIENCES INC
On 9 February, the Court of Appeal handed down its decision in Eli Lilly & Co. v Human Genome Sciences. The Court of Appeal upheld Kitchin J's conclusion that Human Genome Sciences ('HGS') disclosure of a nucleotide and amino acid sequence for a novel member of the tumour necrosis factor superfamily, lacked industrial applicability. Lack of industrial applicability has been a little used argument in patent revocation litigation in the UK to date. HGS had sought protection too early and could only make a prediction as to how the cytokine might be useful on the basis of the knowledge of other tumour necrosis factors. Effectively, the reader of the patent was left with a research programme to put the disclosure to use. The Technical Board of Appeal had been persuaded that the patent was valid but despite a tendency and preference of the English Courts to follow a principle of law laid down by the TEA, the Court of Appeal emphasised that it was not bound to follow EPO decisions, particularly where findings of fact differed.
GERMANY -- SPC medical devices containing a medicinal product - Patents - Next round in the debate about zero SPCs UNITED KINGDOM -IP licence termination and the anti-deprivation principle - Patents - Court of Appeal does not follow EPO in Eli Lilly v HGS - Companies - Corporate Venturing in the life sciences sector - Pharmaceuticals - OFT investigates Reckitt Benckiser EUROPEAN COURT OF JUSTICE - Monsanto v Cetera - AG attempts to limit the scope of DNA patents EUROPEAN PATENT OFFICE - Claims encompassing substantial surgical interventions are excluded from patentability, Decision G1/07 - Dosage regime claims allowed and Swiss-type claims abolished, Decision G2/08
Patents for Chemicals, Pharmaceuticals and Biotechnology: Fundamentals of Global Law, Practice and Strategy (5th Edn)
PHILIP W. GRUBE AND PETER L. THOMSEN