This is a case that went to the Supreme Court in the summer. It concerned the validity of the patent for a nucleotide sequence of the gene encoding a novel protein. The case raised a difficult question concerning the applicability of Articles 52 and 57 of the European Patent Convention to a patent for biological material. The decision has consequences for biological research generally.
The trial judge had described the patents as containing “extravagant and contradictory claims”.
HGS, the patentee and appellant, argued that the full and careful analysis of the law by the trial judge, Kitchin J., which concluded that Article 57 was not satisfied and revoking the patent, was nevertheless wrong.
The Supreme Court allowed the appeal. Lord Neuberger in his lead judgment said that, “on policy, just as it was undesirable to let someone have a monopoly over a particular biological molecule too early, because it risks closing down competition, so it would be wrong to set the hurdle of patentability too high.”
That is not the end of the appeal. This is because the Court of Appeal did not deal with other elements of the original appeal. One was the invalidity ground of insufficiency, which is a major part of the case. So it is going back to the Court of Appeal for those outstanding matters to be dealt with.