Patents: Human Genome Sciences Inc. v Eli Little and Co.
In its second intellectual property appeal (the first being Lucasfilm v Ainsworth [2011] UKSC 39 see my case note " Lucasfilm v Ansoworth The Supreme Court's First IP Appeal" 31 July 2011 IP/IT Update) the United Kingdom Supreme Court had to consider the way in which the requirement of industrial applicability extends to a patent for biological material. One of the conditions for the grant of a patent in art 52 (1) of the European Patent Convention ( "EPC" ) is that the invention is "susceptible of industrial application." Art 57 further provides that "[a]n invention shall be considered as susceptible of industrial application if it can be made or used in any kind of industry, including agriculture." S.1 (1) (c) and s. 4 (1) of the Patents Act 1977 makes identical provision in respect of British patents. Footnote 5 to art 27 of TRIPS suggests that the term "capable of industrial application" may be deemed by a WTO member as syn...