UPC CoA, 20 December 2024: Claimed composition is unsuitable as a drug: invalidity because of insufficient disclosure
28-12-2024 Print this page
Claim construction (Article 69 EPC).
A linguistic error, a spelling mistake or any other inaccuracy in a patent claim can only be corrected by way of interpretation of the patent claim if the existence of an error and the precise way to correct it are sufficiently certain to the average skilled person on the basis of the patent claim, taking into account the description and the drawings and using common general knowledge.
The Court of Appeal can leave open the question of whether the average skilled person, in the context of claim interpretation, can be expected to consult catalogues and databases to check how a perceived error in the claim should be corrected. Even if the average skilled person would do so, it would not be sufficiently certain that the signal peptide consists of 22 amino acids for the following reasons.
Alexion’s assertion during the grant proceedings, and in particular the TBA’s endorsement thereof, can be seen as an indication of the view of the person skilled in the art at the filing date.
Insufficient disclosure (Article 83 EPC). Claimed pharmaceutical composition comprises an antibody comprising a light chain consisting of SEQ ID NO: 4 including the first 22 amino acids is not suitable for formulation as a pharmaceutical composition and used as a drug.
