06.27.18

J A Kemp Pushing the Boundaries of Patent Scope in Europe With Antibodies and SPCs

Posted in Europe, Patents at 5:30 am by Dr. Roy Schestowitz

Even the USPTO isn’t too clear on antibody patent policies

“…currently there is an apparent tension between the USPTO guideline with which antibody patents are granted and the case law with which the validity of existing antibody patents is determined. The antibody “exception” of the USPTO written description guideline says that a claim for an isolated antibody binding to an antigen satisfies the written description requirement even when the specification only describes the antigen and does not have working or detailed prophetic examples of antibodies that bind to the antigen. United States Patent and Trademark Office, Revised Interim Written Description Guidelines Training Materials (1999) at 59–60 [hereinafter Training Materials]; United States Patent and Trademark Office, Written Description Training Materials, Revision 1 (March 25, 2008) at 45–46 [hereinafter Revised Training Materials]. In Centocor v. Abbott, the Court of Appeals for the Federal Circuit (“Federal Circuit”) held that a patentee cannot claim an antibody unless the specification describes it, even if he/she fully characterizes the antigen, and the court vacated a $1.67 billion jury verdict, the largest patent infringement award in U.S. history. The relationship between Centocor and the USPTO guideline is not clear. Although many commentators generally agree that Centocor at least restricts the scope of the antibody exception, they disagree over interpretation of the post-Centocor antibody exception.” (Source: “Written Description Problems of the Monoclonal Antibody Patents after Centocor v. Abbott”)

Summary: Patent maximalism is still a serious and an urgent issue for the EPO to tackle; the Office seems to have been dedicated to the interests of litigation firms rather than science and technology sectors

THERE are two types of patents that we oppose; one is software patents and the other is ‘life’ patents, or patents which pertain to what already exists in nature (or manipulated slightly from what’s in nature) as those aren’t actually inventions but monopolies on life itself. Ramifications include food prices, breeding, public health (e.g. cancer effects), and access to medicine. The EPC sets limits (if not outright bans) on both types of patents, but the EPO‘s management doesn’t give a damn. Production, production, production (where “production” gets measured in terms of granted patents).

“The EPC sets limits (if not outright bans) on both types of patents, but the EPO’s management doesn’t give a damn.”There have been many articles lately about António Campinos; it’s all about trademarks and hours ago it was reported that his agency (EU-IPO) had passed France.com to someone else, in effect taking it away from its longtime owner. Remember that Campinos is a Frenchman and recall the trademark stories about Battistelli at INPI. It does make one wonder what sorts of maximalists we deal with here.

“We’ve recently noticed J A Kemp, a law firm, repeatedly promoting patent maximalism across Europe.”Where does the EPO go from here as far as patent scope is concerned? Will Campinos undo the great damage caused by Battistelli on purely technical grounds (never mind the corruption and abuses)?

We’ve recently noticed J A Kemp, a law firm, repeatedly promoting patent maximalism across Europe. John Leeming from J A Kemp wrote about software patents earlier this year and earlier this month they spoke about antibodies, with the obligatory promotion of Supplementary Protection Certificates (SPCs)]. J A Kemp was again mentioned here very recently (it does promotion of “Patenting Antibodies at the EPO”).

Well, SPCs (related to UPC) are in many headlines this month because of a decision/announcement from European authorities and yesterday we spotted Mondaq’s spam/promotion, with statements like “ask your usual J A Kemp contact.”

It’s titled “Antibodies In The European Patent Office” (similar but not directly related to patents on life) and it speaks of patentability criteria as follows:

The European Patent Office (EPO) applies the same basic patentability criteria to antibodies as to other inventions, but it can sometimes appear that antibodies are treated as a special case. For an explanation of the basic approach adopted by the EPO, please see our related briefing Antibodies in the European Patent Office – Basic Principles or ask your usual J A Kemp contact. The present briefing is intended to develop those Basic Principles into a guide to the drafting and prosecution of patent applications for antibody inventions.

The briefing focuses on the most common type of antibody invention at the present time – namely monoclonal antibody products for which the target and any associated disease indications are already known. We also provide guidance on ensuring your antibody claims are appropriate to support future applications for Supplementary Protection Certificates (SPCs).

It’s no secret that some of the biggest pushers for UPC are large pharmaceutical firms, which want to then impose SPCs and cement their monopolies. If the EPO obeys their malicious agenda, which threatens to spread software patents in the whole of Europe in one fell swoop (we know that the EPO recklessly grants these), then our challenges with the EPO as far as patent scope and litigation scope (UPC) are concerned will take priority.

“We’ve spoken about these issues for nearly a decade, but it’s only in recent years that technology firms put their weight behind groups and studies that demonstrate what we spoke about, hoping to sway politicians accordingly.”Our concern about this isn’t isolated. IP2Innovate, which fronts for technology firms, has just released this press release and told us about it. Amaury Libbrecht, Policy Manager at IP2Innovate, told us about “supporting innovation in Europe through a balanced Europe patent system…”

Notice the repeated warnings about patent trolls in Europe — a subject which patent trolls' front groups like IAM (together with Team UPC) tried hard to deny.

The latest from IP2Innovate, Libbrecht has told us, “identifies some imbalances in Europe’s patent legal system (i.e. quasi automatic injunctions, bifurcation/injunction gap, ineffective fee-shifting, poor patent quality and lack of transparency) and point out solutions to address these problems…”

We’ve spoken about these issues for nearly a decade, but it’s only in recent years that technology firms put their weight behind groups and studies that demonstrate what we spoke about, hoping to sway politicians accordingly. █

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