Discoveries made through ‘routine’ research can now be patentable

In a ruling handed down on 27 March 2019 by the UK Supreme Court, Lord Hodge has confirmed that discoveries made through well-established or routine research protocols can be inventive and rewarded with a patent.

The UK BioIndustry Association (BIA) has welcomed the clarity provided by the decision on principles of patent law that have a wider impact on the biotech sector beyond the parties in this particular case – ICOS vs Actavis.

The trade body intervened in the case to ask that the Supreme Court not provide a decision that could have unintended adverse consequences for patents for inventions made during the pre-clinical or clinical trial process, which would significantly raise the hurdle for companies to attract the investment needed to identify and develop new medical innovations.

Responding to the BIA’s submission, the lead judge in the decision, Lord Hodge, said "I do not construe the judgements of the Court of Appeal as supporting any general proposition that the product of well-established or routine enquiries cannot be inventive… efficacious drugs discovered by research involving standard pre-clinical and clinical tests should be rewarded with a patent if they meet the statutory tests."

BIA Head of Policy and Public Affairs, Dr Martin Turner, said: "The research and development of new medicines requires significant investment from companies so it is essential that they can protect the products of their investment through the patent system. This in turn incentivises further investment in medical research in a virtuous cycle that delivers improved treatments for patients.

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