Wednesday, 26 June 2013
What is a poor moggy to do? On the same day, no less, the IPKat learns of the consultation on the 15th draft of the Rules of Procedure of the UPC, and of Mr Justice Arnold’s exciting decision in Eli Lilly & Company v Janssen Alzheimer Immunotherapy (let’s call them Lilly and JAI). What is this Kat going to use to lull him off on his Katnap? 132 pages of, well, Rules, or 90 pages (and 354 paragraphs, since you ask) of dense law and lovely science relating to Alzheimer’s disease and its treatment. (Do cats get Alzheimer’s, asks Merpel? The IPKat can’t quite remember…)
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Well, happily, now the IPKat has had a chance to peruse, read (and mark and inwardly digest, if not quite yet learn) both documents, and so now, dear readers, he is happy to tell you about the Lilly v JAI case. The citation is EliLilly & Company v Janssen Alzheimer Immunotherapy [2013] EWHC 1737 (Pat) (25 June 2013) and you can read it in full on the ever-faithful BAILII, complete with pretty pictures. Pictures do so help with the science, don’t you find?
As you will have gathered by now, the case was about Alzeimer’s Disease (AD), and, in particular, its treatment using an antibody to β- amyloid peptide (also referred to as amyloid-β or Aβ). The first nearly 100 paragraphs of the judgment is technical background which explains all about this, but, briefly, AD is, as Arnold J faithfully records, associated with:
Parenchymal deposits of amyloid called neuritic plaques, which are dense extracellular deposits found in the brain’s grey matter. The principal component of such plaques is Aβ. The Aβ deposits are surrounded by degenerating neurites which are in turn covered in astrocytes and microglia.
Accordingly, an antibody to Aβ might serve to reduce these deposits and ameliorate the symptoms of AD.
Claim 1 of the patent was:
A pharmaceutical composition comprising an antibody to Aβ and a pharmaceutically acceptable non-toxic carrier or diluent, for use in preventing or treating a disease characterised by amyloid deposit in a patient, wherein the isotype of the antibody is human IgG1.
Arnold J dismissed an allegation of added matter, and that claim 1 of the Patent lacks novelty over International Patent Application No. WO96/25435 (“Konig”) which was published on 22 August 1996. JAI contended that claim 1 is novel over Konig since (i) Konig does not disclose an antibody to Aβ of the human IgG1 isotype and (ii) Konig does not disclose use of (a pharmaceutical composition comprising) the antibody in preventing or treating a disease characterised by amyloid deposit. Arnold J accepted both of these contentions.
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| A less pretty but informative picture |
On inventive step, Arnold J considered “The key question, therefore, is what expectation of success the skilled team would have had if they contemplated implementing Konig’s proposal.”
The IPKat was delighted to see that feline metaphors are still going strong in UK Patent litigation:
Lilly contends that, if these points would have been perceived by the skilled team to be “lions in the path”, there is nothing in the Patent to show that they were in fact “paper tigers”. I disagree. For reasons that I will explain when dealing with insufficiency, I consider that the specification of the Patent does contain enough to make it plausible that (pharmaceutical compositions comprising) some antibodies to Aβ will be effective to prevent and/or treat AD…
In the light of this Arnold J concluded:
Overall, I conclude that Konig did not make it obvious to make an antibody to Aβ “for use in preventing or treating a disease characterised by amyloid deposit”.
In relation to Lilly’s contention that claim 1 was obvious over European Patent Application No. 0 613 007 A2 (“Becker”) published on 31 August 1994, Arnold J noted:
I shall deal with this very briefly, since in my opinion it is manifest that claim 1 cannot be obvious over Becker if it is not obvious over Konig.
Arnold J also rejected an Agrevo-type obviousness objection.
So far therefore all going well for JAI. But wait, we are only at page 64. Sufficiency is yet to come.
An interesting preliminary point in relation to insufficiency is that whereas in Generics (UK) Ltd v Yeda Research and Development Co Ltd [2012] EWHC 1848 (Pat) Arnold J put restrictions on the degree to which post-published evidence may be relied on in relation to inventive step (in particular the issue of whether the patent renders it plausible that the invention works), he rejected a submission by JAI that there should be any such limitation in relation to demonstrating insufficiency of the patent. He decided that the approach to adopt should be as follows:
For the reasons set out above, the court must undertake a two-stage enquiry. The first stage is to determine whether the disclosure of the Patent, read in the light of the common general knowledge of the skilled team, makes it plausible that the invention will work across the scope of the claim. If the disclosure does make it plausible, the second stage is to consider whether the later evidence establishes that in fact the invention cannot be performed across the scope of the claim without undue burden.
On the evidence, Arnold J found as follows in relation to the disclosure of the patent:
Thus I conclude that the disclosure in the Patent does make it plausible that passive immunisation of a suitable antibody to Aβ will be effective to prevent and/or treat a disease characterised by amyloid deposit.
(Still going well for JAI, notes Merpel, but we are still only at page 74, growls the IPKat, because Arnold J ominously continues…)
That is not the end of the enquiry, however. It remains to be considered whether the Patent makes it plausible that any antibody to Aβ (provided it is of IgG1 isotype) will be effective to prevent and/or treat a disease characterised by amyloid deposit.
And on the evidence he decided:
Accordingly, I conclude that the disclosure of the Patent does not make it plausible that any antibody to Aβ (provided it is of IgG1 isotype) will be effective to prevent and/or treat a disease characterised by amyloid deposit. It only makes it plausible that N-terminal antibodies will be effective. It follows that the Patent is insufficient.
He went on for good measure to decide (in case he was wrong on the “plausible” point above) whether the patent was additionally invalid for insufficiency either because the invention could not be performed without undue burden, or because of excessive breadth of the claims. Finding the patent bad in both respects, the Judge stated:
The upshot is that the Patent does no more than invite the skilled team to perform what Prof Wisniewski rightly described as a “very significant research project with a high prospect of failure” and, if they succeed, claims the fruits of their research. It is therefore insufficient: see Novartis AG v Johnson & Johnson Medical Ltd [2010] EWCA Civ 1039, [2011] ECC 10 at [77].
Finally, Arnold J held that the Lilly product solanezumab did infringe the patent (or would if it were valid).
The IPKat was wondering following recent cases of Lilly v HGS and Regeneron whether broad antibody claims were inherently immune to insufficiency attack and is reassured to discover that this is not necessarily so. How do his dear readers see this case? There is certainly more to be mined from this meaty judgment.
Merpel meantime has been scampering around the corridors of the EPO, and heard that the patent in suit (EP 1 994 937) was revoked by the Opposition Division at Oral Proceedings on 10 June 2013 on the grounds of sufficiency (Main Request) and added matter (Auxiliary Requests). Will the EPO Boards of Appeal or the UK Court of Appeal get the final decision in first?
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