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HGF is one of Europe’s largest firms of intellectual property specialists in Europe, with 21 offices across the UK, The Netherlands, Germany, Austria, Switzerland and Ireland. The firm’s trade mark attorneys, patent attorneys and IP solicitors provide an integrated IP solution for clients.
The Boards of Appeal of the EPO (BoA) are the appeal body that reviews EPO decisions.
United Kingdom
Intellectual Property
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The Boards of Appeal of the EPO (BoA) are the
appeal body that reviews EPO decisions. In this case, they examined
a claim that identified an antibody by an internal code name.
The real case: Your team is working with a
clinical antibody known internally by a code name. You draft claims
for a new indication and put this code name in the claim because,
internally, there is no doubt about the molecule being
targeted.
Claim 1 : (alternative claim)
“1. A medicament for use in the treatment of an
auto-inflammatory syndrome in a patient in need thereof, the
medicament comprising the human IL-1beta binding antibody ACZ885
and wherein said auto-inflammatory syndrome is Tumor Necrosis
Factor Receptor Associated Periodic Syndrome (TRAPS), and wherein
said antibody is parenterally administered at a dose between 0.1-50
mg of said antibody per kg body weight of the patient.”
Beginning of the story: Lack of clarity under
Article 84 EPC. This was not the main issue in the first instance.
On appeal, the question became simple and decisive: can a third
party know, from reading the patent, what exactly
“ACZ885” is?
The BoA’s teaching: An internal code name
is not sufficient to define a claim, unless the file gives it a
precise and unambiguous technical meaning. In this case, partial
elements, such as sequence fragments and a reference to another
document, were not sufficient to clearly identify the antibody
covered by the claim.
Practical drafting tip: if you use an antibody
code name in a claim, explicitly link it to a verifiable definition
in the application, e.g., complete VH and VL or complete heavy and
light chains with SEQ IDs, or a clearly identified combination of
CDRs, or an epitope and an objective test with a quantified
threshold, otherwise avoid the code name in the claim and only
claim what a third party can verify.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.