Yeda Research and Development Company Ltd v. The Comptroller General of Patents, Patents Court, Chancery Division, High Court of Justice, London, UK, 12 July 2010, EWHC 1733 (Pat)
The Patents Court has dismissed Yeda’s appeal of the decision of the UK Intellectual Property Office (UKIPO) to refuse two applications for SPCs relating to a combination treatment for cancer.
Yeda’s patent EP (UK) 667 165 B1 was filed in 1989 and claimed a therapeutic composition comprising a monoclonal antibody and an anti-neoplastic agent. A Marketing Authorization was granted by the European Commission on 26 June 2004 for the monoclonal antibody cetuximab and mention was made in passing to its use in combination with the anti-neoplastic agent, irinotecan.
Yeda subsequently file two SPC applications. The first specified the product to be protected as “cetuximab in combination with irinotecan” and the second specified the product as “cetuximab”. UKIPO rejected the first application as the Marketing Authorization relied on was for cetuximab alone and rejected the second application because cetuximab (as opposed to the combination of cetuximab and irinotecan) was not protected by the patent.
On appeal, the Patents Court upheld the decision of UKIPO. For the first application, Mr Justice Lewison held that the Marketing Authorization covered cetuximab only and there was no basis to support a conclusion that it covered cetuximab in combination with irinotecan. For the second application, Mr Justice Lewison held that cetuximab alone was not protected by the patent and rejected Yeda’s argument that the provision of cetuximab on its own could amount to secondary infringement since to rely on the making of a therapeutic composition in the patient’s bloodstream when cetuximab was prescribed along with irinotecan was actually a method of treatment and so not patentable.
Read the judgment (in English) here.
Head note: Rob Fitt
Comments