Regeneron Pharmaceuticals Inc. and Bayer Pharma AG v. Genentech Inc., Court of Appeal, London, UK, 21 February 2013,  EWCA Civ 93
The Court of Appeal upheld the decision of the Patents Court that Genentech’s patent was valid and infringed.
Regeneron and Bayer applied to revoke Genentech’s patent, EP (UK) 1 238 986, regarding the use of human vascular endothelial growth factor (hVEGF) antagonists for the treatment of non-cancerous (non-neoplastic) diseases which are characterised by excessive blood vessel growth (neovascularisation or angiogenesis). Regeneron and Bayer attacked the patent on the grounds of lack of novelty, obviousness and insufficiency.
Regeneron and Bayer also sought a declaration of non-infringement in respect of a product called VEGF-Trap which had been developed by Regeneron and licensed to Bayer. Bayer intended to sell VEGF-Trap in the UK for the treatment of neovascular age-related macular degeneration (ARMD), a leading cause of premature blindness. Genentech counterclaimed for infringement.
In the Patents Court, Mr Justice Floyd held the patent to be valid and infringed. Regeneron and Bayer appealed this decision.
On appeal, Regeneron and Bayer argued that the Judge had misconstrued the claims of the patent as not requiring any therapeutic effect on the disease or disorder in question and that he was inconsistent in applying his construction when considering validity. They also argued that the Judge had wrongly held that the claims encompassed any variant of a naturally receptor which retained the ability to bind VEGF and inhibit its activity. The Court of Appeal rejected the appellants’ arguments on construction. The specification clearly showed that Genentech intended variants to be included within the scope of the monopoly and VEGF-Trap fell within the scope of the patent.