The English Court of Appeal dismissed Novartis’ appeal against the finding of the Patents Court that Novartis’ patent for a sustained release formulation of fluvastatin was invalid for obviousness. The case was unusual because, at first instance, Warren J. had held the patent to be inventive on a conventional analysis but then went on to find it obvious using an acontextual approach. The Court of Appeal discussed the correct approach to the question of obviousness in English law, by reference to both the problem and solution approach developed by the European Patent Office and the established four-step approach developed by the English Courts in Windsurfing v Tabur Marine and Pozzoli v BDMO .

According to the Advocate General Article 9 of the Biotechnology Directive does not limit the scope of protection of patents for biotechnology inventions. Nonetheless protection for DNA sequences as such is excluded.

In its decision rendered on 19 March 2008 the District Court of The Hague referred questions to the European Court of Justice on the interpretation of article 9 of Directive 98/44/EC 0f the European Parliament and of the Council of 6 July 1998 on the legal protection of biotechnological inventions (“Biotechnology Directive”). In particular the Dutch court wished to know whether article 9 of the Biotechnology Directive should be interpreted as extending the rights conferred by a patent covering a biotechnological invention, or, on the contrary, whether it should be interpreted to limit the proprietor’s right to prevent the exploitation of material containing the patented product (DNA sequence), on the condition that such product still performs its function. The Advocate General in his opinion comes to the conclusion that it is irrefutable that article 9 of the Biotechnology Directive is a rule for the extension of patent protection. However, in his opinion the system put in place by the Biotechnology Directive excludes protection for DNA sequences as such. Such protection is limited “to the situations in which the genetic information is currently performing the functions described in the patent.” But how does this relate to the obligations under the European Patent Convention (EPC)?

This case relates to the opposition against Amazon’s famous ‘one-click’ patent. The Board ruled that what is required for obtaining patent protection for a software-implemented business method is that the software should contribute to a technical effect which goes beyond the mere implementation of the business method itself. The Board held that although computer-implemented business…

In this case the Board ruled that features providing a displayed icon of a three-dimensional appearance have technical character and thus should be considered when assessing inventive step. According to the Board these features specify how the information is displayed and not what is displayed so that these features do not fall under the category…

In this case, the Board of Appeal had to decide whether a claim containing a feature for which the description contained erroneous figures only met the requirements of Article 83 EPC (sufficiency of disclosure) and Rule 27(1)(e) EPC 1973 (corresponding to Rule 42(1)(e) EPC 2000). The Board of Appeal decided that a patent application should…

The Enlarged Board of Appeal answers three questions of law as follows: Question 1: Where it is already known to use a medicament to treat an illness, Article 54(5) EPC does not exclude that this medicament be patented for use in a different treatment by therapy of the same illness. Question 2: Such patenting is…

The Enlarged Board of Appeal in reply to three questions of law submitted to it, concludes as follows: Question 1: When an international application is filed and published under the PCT in an official language of the EPO, it is not possible upon entry into the regional phase to file a translation of the application…

1. The Enlarged Board of Appeal considered the meaning that is to be given to the exclusion of patents on methods for ‘treatment by surgery’ (Article 53(c) EPC). The current construction used by the boards and the EPO as any non-significant intervention on the structure of an organism by conservative procedures was found to be…