Michael Tappin KC and Michael Conway appeared for the successful Claimant (BioNTech) in this action seeking revocation of two of the Defendant’s (CureVac) patents. The patents, EP 668 and EP 755 were divisionals from a common earlier application and their descriptions were materially identical. They claimed artificial mRNA molecules in which the poly(A) tail was split into at least two separate poly(A) sequences by a non-poly(A) linker sequence.
Meade J held that the technical contribution contended for by CureVac, that splitting the poly(A) tail of an mRNA improves expression, was not actually disclosed in the patents. In any event, the claimed technical effect was not plausible, and was not in fact achieved, across the scope of the claims. The patents were therefore insufficient and/or obvious on the AgrEvo basis. Further, Meade J held that the patents were obvious over an earlier patent, Thess.