Patent decision

BL number

O/130/10

Concerning rights in

GB 2428007

Hearing Officer

Mr S Probert

Decision date

28 April 2010

Person(s) or Company(s) involved

Maxluck Biotechnology Corp

Provisions discussed

Section 3

Keywords

Inventive step

Related Decisions

None

Summary

The invention concerned a composition comprising lactoferrin and a trivalent chromium compound for use in the prevention or treatment of myocardial infarction - ie. heart attacks. The prior art showed the use of such a compound in the treatment of diabetes, and/or hyperlipidaemia (high cholesterol). It was common general knowledge that diabetes can promote cardiovascular disease, but the hearing officer decided that it did not necessarily follow that the skilled person would consider it obvious to take diabetic treatments and use them to treat or prevent myocardial infarction - not least because, according to the applicant, it was also common general knowledge that some hypoglycaemic drugs (for treating diabetes) actually increase the risk of cardiovascular disease (eg. myocardial infarction), and others give rise to side effects that increase the risk of cardiovascular disease. Following Ratiopharm v Napp [2009] RPC 11, the hearing officer decided that the skilled person comes armed with all the common general knowledge, some of which may lead towards the inventive concept, and some away from it.

As there were significant doubts in his mind as to the obviousness of the claimed invention, the hearing officer considered that the applicant was entitled to the benefit of that doubt. The case was remitted to the examiner for the examination process to be concluded.