Is the European Patent Office's approach to assessing obviousness of antibody inventions consistent?

Abstract

Antibodies can be highly effective in the diagnosis and/or treatment of a wide range of diseases, including certain cancers, viral infections and inflammatory diseases. The development of any new therapeutic antibody is very time consuming, requires significant resources and only a small percentage of initial candidates ever make it onto the market. Patent protection therefore plays a key role in allowing companies to obtain a good return on this investment. However, in Europe, the bar for assessing the inventiveness (obviousness) of antibodies is currently set particularly high, so there is a significant risk that new antibodies may be denied patent protection despite having beneficial properties. This article looks at the rationale behind the European Patent Office's (EPO) current approach to assessing the patentability of antibodies, contrasting it with US practice as well as the EPO's assessment of obviousness in the chemical field. It also explores whether a recent decision by an EPO Appeal Board may help to bring about a change in this practice.