In Human Genome Sciences Inc v Eli Lilly and Company Limited the UK Supreme Court has affirmed that the approach taken by the European Patent Office in decision T18/09 in judging whether or not a patent relating to biological materials passes the test of industrial applicability that is applied to all patent applications. In allowing the appeal The Supreme Court found that the UK Court of Appeal had applied too strict a test in reaching its decision on this point. In particular the judges found that it is not a requirement that the description show that a particular use for a product had actually been demonstrated, rather than that the product had plausibly been shown to be usable for the purposes of research work, which the court said the Board must have regarded as an industrial activity in itself.
This is certainly good news for applicants, patentees and patent attorneys practicing in this area. The decision on when to file applications in this area of technology is always fraught; too early and the application when broadly claimed may be judged insufficiently described or as in this case, not industrially applicable; too late and the risk of being beaten to the cut is increased. From the point of view of the applicant (and his advisors) today's judgment makes life a little easier.