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human Genome Sciences wins Supreme Court ruling

11 November 2011

On 2 November 2011, the British Supreme Court unanimously ruled in favour of Human Genome Sciences Inc. (HGS) in its dispute with Eli Lilly & Co, over the validity of a patent for a protein and gene sequence, Neutrokine-a.

Overturning the unanimous decisions of the Court of First Instance and the Court of Appeal, the Supreme Court has set an important precedent.

Based on knowledge of similar gene sequences, HGS claimed that Neutrokine-a could be used to treat conditions involving the immune system. The Court of Appeal held the patent held invalid for lack of industrial applicability as its use was too speculative.

The Supreme Court, having clearly been influenced by the wider consideration of public policy, held that the use of the gene need not be demonstrated, but must only be plausible. The decision has lowered the hurdle for patentability and has relaxed the standard of industrial application – an ‘educated guess’ for the use of an invention can now suffice.

Eli Lilly & Co still consider the patent is invalid, and the case is now likely to return to Court to determine the issues of obviousness and insufficiency.

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