This article analyzed a few cases in which antibody-related claims were challenged for obviousness. Under 35 U.S.C. § 103, a claim is not patentable if the “differences between the claimed invention and prior art are such that the claimed invention as a whole would have been obvious” to a person of ordinary skill in the art, before the effective filing date of the claimed invention. This article analyzes obviousness issues related to antibody patents at the Patent Trials and Appeal Board (PTAB) and in federal courts.It shows that method of treatment attracts the most patent claims. I thought this was an interesting read (thought half of it went over my head) following our debate in class over patenting health care equipment.
Interesting comparison to the European Patent Office; for antibody patents there, the “inventive” process does not apply to just structural amino acids like in US PTO. For the EPTO, “a claim of this type is often rejected for lack of inventive step if an antibody to the same target already existed in the prior art, unless the claimed antibody has some unexpected property. The EPO’s position is that, if an antibody to the same target has already been described in the prior art, then a new antibody that is made through routine experimentation and does not show any unexpected properties is simply an alternative without special effect and thus is obvious”