Of pigs and patents ...

This morning Mr Justice Arnold, of the Patents Court for England and Wales, produced a whopping 250 paragraph (50 page) judgment in Intervet UK Ltd v Merial, the University of Belfast and the University of Saskatchewan [2010] EWHC 294 (Pat), an exciting dispute over European Patent (UK) 1 386 617 for a "method for the in vitro diagnosis of type II porcine circovirus infection and diagnostic reagents". The result was a finding that Merial's patent was invalid and that, even if it had been valid, it had not been infringed.

The patent was for a means of diagnosing a disease known as post-weaning multisystemic wasting syndrome ("PMWS"), a widespread disease affecting many herds in Saskatchewan and Alberta. A chronic, insidious disease in young pigs, PMWS caused weight loss, tachypnea, dyspnea and jaundice. The patent itself was affected by some none-too-insidious prior art: (i) a submission containing a polynucleotide sequence for porcine circovirus which was published on the National Center for Biotechnology Information website and (ii) international patent application. If the patent, in its original form or as amended, could claim an earlier priority date [which it could not], it might be safe, and there was also a problem of inventive step to overcome. Cross-checking his conclusion using the European Patent Office's problem-solution approach discussed by Lord Justice Jacob in his recent judgment in Actavis v Novartis (noted here by the IPKat, in what is this weblog's all-time most commented-upon post), Arnold J concluded that the skilled team of researchers could have solved the problem before them without needing to look beyond the relevant prior art, so obviousness was proved.

This judgment is far too long for the IPKat to absorb all in one go, so he reserves the right to write more about it later. As usual, he welcomes readers' comments. Merpel says, not so long ago the learned judge was ruling on Spam; now he has graduated to pigs ...

This little piggy went to market here
Three little piggies here
Three little wolves and the big bad pig here
Of pigs and patents ... Of pigs and patents ... Reviewed by Jeremy on Tuesday, February 23, 2010 Rating: 5


  1. Section 242 deals with the PSA and Arnold gets it about right (unlike Jacob in Actavis/Novartis). He does at least identify the closest prior art before defining the problem. His chosen problem seems about right for claim 13 but, strictly, for claim 1 it should be defined in terms of providing a diagnostic method rather than of isolating a virus. Not full marks, but a definite pass for paper C.


  2. Yes but one might all the same have wished that, for the benefit of readers and for the sake of the reputation of the patents court in London, Richard Arnold had taken the trouble to walk us through the standard sequence of steps of EPO-PSA. Just to show that he does understand them. After all, it would not have added more than a few lines to his one short paragraph.

  3. I think you can safely assume that Arnold J understands problem solution. It is also my understanding that he expressly requested submissions on problem solution from the parties, and got them.

  4. While it is a great comfort, thank you Anonymous, to read that the court asked for obviousness to be addressed according to EPO-PSA, I'm still lamenting that I cannot discern in the Decision any evidence of its orderly, by the book, application. You assume. Forgive me if, for the time being, I don't.


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