Life Sciences analysis: Jack Severs, partner and Joe Spencer, associate of Gill Jennings & Every LLP analyse the landscape of patent-eligible subject matter within the domain of AI healthcare in Europe.

IP and Life Science analysis: Caitlin Heard, IP Litigation Partner, and Rachel Free, Patent Attorney and Partner, at CMS, discuss the applicability of artificial intelligence (AI) and quantum technologies to the pharmaceutical industry and the challenges of patenting these new technologies.

IP analysis: The Patents Court has held that the defendant (Source) was not entitled to a declaration of non-infringement of the claimant (Excel)’s patent for an ammunition bag because Source’s ammunition bag constitutes an immaterial variation of, or is equivalent to, the invention disclosed by Excel’s patent.

IP analysis: This case concerned the alleged infringement of two patents relating to the shape and composition of a disposable washbowl made of moulded paper pulp. The first patent was held to be valid but not infringed. Notably, in relation to the doctrine of equivalents, the judge applied the Formstein defence, a defence which has been subject to obiter discussions in previous patent cases but until now had never been directly applied on the question of infringement by equivalents in England. For the second patent, the judge found that the patent was valid (and infringed), as it was not obvious over the two cited pieces of prior art. This decision flowed from the judge’s assessment of the identity of the skilled person and their common general knowledge. Also, of interest in relation to the second patent were the judge’s comments on long felt want and commercial success which highlight the difficulties of relying on these arguments in support of inventiveness, and serve as a good reminder on the importance of adducing properly substantiated evidence. Written by Tanvi Shah, Bryan Poon and Meredith Hughes from Baker & McKenzie LLP.

IP analysis: The patents court has held that Takeda’s Vedolizumab product (Entyvio) is an antibody within the claims of Roche’s European patent titled ‘Glycosylated Antibodies,’ but found that the patent ought to be revoked because all the relevant claims are invalid due to a lack of novelty, a lack of technical contribution and insufficiency.

IP analysis: The Patents Court has held that Abbott’s patent (EP (UK) 3 730 044 B1 (‘EP044’)) in respect of particular features of continuous glucose monitors (CGMs) that have an integrated sensor and needle insertion and retraction mechanism was obvious in the light of the prior art. Had it been valid, Dexcom’s G7 CGM device would not have infringed on the basis that the insertion mechanism did not operate in the way claimed. The judge (Mr Justice Mellor) also made pertinent comments of relevance to patent litigation practitioners in respect of the instruction of expert witnesses, particularly in relation to whether the experts reflected the skilled addressee of the patent in issue, and whether they were able to respond effectively to the other sides’ submissions. Written by Josie Miller, associate at Pinsent Masons LLP.

IP analysis: Aylo faced an ‘injunction gap’ in German infringement proceedings and wished to have a UK decision invalidating the patent to show the German court, with the aim of avoiding an injunction in Germany. Aylo asked the judge to either list the trial at the earliest possible time (according to the Patents Court Practice Statement on the Listing of Cases for Trial in the Patents Court, the ‘Practice Statement’), or to expedite the trial according to the principles set out in case law. The judge considered the factors for expedition set out by the Court of Appeal in WL Gore & Associates GmbH v Geox SpA (the ‘Gore factors’), ultimately concluding that a listing at the time requested by Aylo was not possible for practical reasons, including a busy court diary. Written by Amanda Easey, senior associate at Penningtons Manches Cooper LLP.

IP analysis: Mark Dean and Justin Lambert of Mishcon de Reya consider the recent clash between InterDigital and Amazon over digital streaming patents and FRAND licence terms, which has sparked key rulings in both the Unified Patent Court (UPC) and the English Patents Court. The UPC and Munich Regional Court granted InterDigital an ‘anti-interim-licence’ injunction, blocking Amazon from seeking an interim licence in the English courts. In turn, the English Patents Court (Meade J) responded with an ‘anti-anti-suit injunction’ to prevent InterDigital from obstructing Amazon’s pursuit of final FRAND relief in the UK. The English court’s order is temporary, designed to protect its jurisdiction while limiting friction with the UPC and German courts. Together, these developments underscore the increasingly tactical nature of global FRAND litigation and may shape the trajectory of future European patent disputes.

Background This Practice Note provides a high-level summary of key themes of comparison between the UK and EU in relation to patents and supplementary protection certificates (SPCs) that have arisen since the UK exited the EU on 31 December 2020 (IP completion day). For a comparison of other IP rights in the UK and EU, see Practice Notes: • Copyright and databases—UK/EU comparison • Trade marks—UK/EU comparison • Designs—UK/EU comparison IP law is significantly harmonised across the EU. Prior to Brexit, many aspects of UK IP law were harmonised with the EU regime, and certain unitary EU IP rights (such as EU trade marks and EU designs) were applicable and enforceable in the UK. As of 31 January 2020, the UK ceased to be an EU Member State. In accordance with the Withdrawal Agreement, the UK entered an implementation period of 11 months ending at 11 pm on IP completion day, during which it continued to be subject to EU law. Following IP completion day, the UK ceased to be subject to EU law and the

Life sciences analysis: This case concerned the messenger RNA (mRNA) technology used to develop BioNTech and Pfizer’s Cominarty coronavirus (COVID-19) vaccines. BioNTech and Pfizer (together, BioNTech/Pfizer) issued proceedings to revoke two of CureVac’s patents, EP (UK) 3 708 668 and EP (UK) 4 023 755 (together, ‘the Patents’). There was no dispute that the Cominarty vaccines infringed these Patents, if they were valid. The Patents concerned ‘split poly(A) tails’ in mRNA and their use to produce vaccines. CureVac asserted that the invention claimed by the Patents improved protein expression, which ultimately enabled the use of mRNA to formulate vaccines. The judge found that the patents were invalid for insufficiency owing to (1) lack of plausibility and (2) because the technical effect did not exist across the scope of the claims. The patents were also found to be obvious over a prior art citation called Thess. A further attack on the basis of added matter failed. Written by Dr Amanda Easey, senior associate at Penningtons Manches Cooper LLP.

This Practice Note discusses issues specific to patents for small molecules or ‘new chemical entities’ (NCEs), a subset of the types of material or method that can be the subject of pharmaceutical patents. For more information about pharmaceutical patents, see Practice Note: Pharmaceutical patents.  Brexit had no impact on the patent protection available in the UK. The UK remains part of the European patent system and can continue to be designated in European patent applications because the European Patent Office (EPO) and the European Patent Convention (EPC) (the international treaty which establishes the procedure for the granting of European patents by the EPO) are both independent of the EU. The UK has simply become another non-EU country which is a contracting state to the EPC, joining Norway, Switzerland and Turkey. The EPO Boards of Appeal are the first and final judicial instance in procedures before the EPO (eg procedures concerning the granting of European patents). The Boards of Appeal include the Enlarged Board of Appeal (EBA) and 28 Technical Boards of

The patents register includes details of all patents and the registrable transactions or incidents relating to that patent.