Thursday, 8 April 2010
Some thoughts from Fordham on industrial applicability
"The chances are that if two sides are squabbling about a patent, it has some industrial applicability" -- so said Lord Hoffmann when introducing the topic at today's session of the 2010 Fordham Intellectual Property Conference. His Lordship then reviewed the Court of Appeal's decision earlier this year in Eli Lilly v Human Genome Sciences (here), in which the question arose as to the degree of proof required for predictability of the likelihood of a specific outcome (in this case, treatment for an unspecified disease of the immune system). The EPO had considered that likelihood of treatment for a class of diseases was sufficient, while the trial judge had considered that the likelihood had to be narrowed to a specific condition. This issue relates to that of breadth of claims, which are likely to be wider in juvenile sciences such as biotech. In this case the Court of Appeal did not describe the difference between the EPO approach and that of the British courts as one of policy; Lord Justice Jacob's court had undermined the principle that the British courts should keep their decisions in line with those of the EPO and was therefore wrong.