Regeneron and Bayer appealed against the decision of Floyd J in [2012] EWHC 657 (Pat) which held Genentech’s patent valid and infringed by Regeneron’s product. On appeal, Kitchin LJ (Moses and Longmore LJJ agreeing) upheld the findings of Floyd J and dismissed the appeal.
The patent claimed the use of human vascular endothelial growth factor (“hVEGF”) antagonists for the treatment of non-cancerous angiogenesis. On appeal Regeneron renewed its attack based on novelty and obviousness over a paper which disclosed that monoclonal antibodies of VEGF may have therapeutic potential for treating angiogenic diseases, and pursued a number of insufficiency arguments. On appeal Kitchin LJ held that the closest prior art did not give clear and unmistakeable directions to perform the teaching of the patent; it was, at most, a prediction that such antibodies could have therapeutic potential. He also held that Floyd J had made no error of principle in his assessment of whether it was “obvious to try” the relevant experiments in light of the prior art and had correctly held that the patent was inventive. On sufficiency, the patent was held to be sufficient because it disclosed a principle of general application which it was plausible to say would work across the full scope of the claim. Regeneron’s product had the ability to bind VEGF, had the claimed therapeutic effect and was an “hVEGF receptor” within the meaning of the patent.
Mark Chacksfield appeared for Regeneron; Michael Tappin QC and Isabel Jamal appeared for Genentech.
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