On November 2, 2011, England’s highest court issued an important decision, Human Genome Sciences v. Eli Lilly, relating to biotechnology and claims directed to genes in particular, and consequently personalized medicine. Interestingly, claims at issue in this U.K. case are very similar to the type of compositions claims at issue in the U.S. Myriad “gene patenting” case. See our previous posts on Myriad, such as our August 9, 2011 post. Specifically, in both cases, claims relate to “isolated DNA” encoding a particular amino acid sequence.
That said, the U.K. case resolves around whether the patent is valid under the requirement that an invention be “susceptible of industrial application” under Articles 52 and 57 of the European Patent Convention (the EPC). This EPC requirement mirrors the U.S. “utility” requirement under 35 U.S.C. §101, rather than subject matter eligibility under §101 at issue in Myriad. The U.K court reversed the lower court to find that HGS’s patent satisfied the industrial application requirement.