The Council of State, the highest administrative court in Colombia has reversed a decision taken by the Colombian Patent Office (CPO) by means of which this Office denied patent protection to Colombian application No. 98.071.271 filed by the applicant Athena Neurosciences, Inc.
In year 1998 Athena Neurosciences, Inc., filed a patent application entitled: "A pharmaceutical composition used in a method for preventing and treating an amyloidogenic disease". After the all administrative procedure the Colombian Patent Office issued a resolution denying the right of patent to this application. The ground for this negative decision was based on the lack of inventive step taking into account the teachings of two documents WO9116819 and WO9400153.
The Colombian Patent Office considered that prior art document WO9116819 had previously taught the method for stimulating the immune system with low doses of amyloid peptides for the treatment of Alzheimer's disease.
On the other hand, the reference WO9400153 had revealed vaccine compositions comprising monophosphorylic lipids and QS21.
The CPO considered that from the combination of this documents it was possible to evidently derive the solution provided by Athena's Colombian patent application.
The applicant filed an annulment action against this negative decision before the Council of State. After the regular procedure this Court issued a ruling reversing the decision originally taken by the CPO.
In this ruling the Council of State argued that in accordance with the proofs gathered during this action (Dr. Vernot's technical concept, six scientific publications, copies of the three granted US patents US 6,787,138; US 6,787,143 and US 6,787,144) it was possible to demonstrate that contrary to the opinion of the Patent Office, the Colombian patent application complied with the patentability requirements specially the inventive step. This Court highlighted the technical concept of Dr. Vernot an expert in immunology, provided by the plaintiff. Dr. Vernot filed a concept in which he traversed the arguments of the Patent Office.
He specially demonstrated that the teachings of the prior art documents cited by the Patent Office offered solutions to problems different to those stated in the Colombian patent application and in addition these disclosures provided solutions suggesting a contrary solution to the one indicated by the Colombian application. Further, Dr. Vernot concluded that no motivation existed to combine the mentioned patent documents.
Moreover, the Council of State agreed with Dr. Vernot's technical concept in that the present invention is completely different from WO9116819 in the process for immune system modulation as well as in the proposed action mechanisms, their effects, pharmacologic agents used, methodology used and their components. The Justices also agreed that reference WO9400153 differs from the present invention in that the said document is related to cellular immune response relevant for intracellular infections produced by viruses or bacteria or some parasites, contrary to which the present Colombian patent application No. 98.071.271 intends to protect.
Therefore, the Council of State concluded that the applicant clearly demonstrated the inventive level of the application, specially based on Dr, Vernot's technical concept;, whereas during the annulment action process, the CPO only ratified the statements presented along the administrative procedure, did not controvert nor discuss the arguments filed by the applicant, specifically Dr. Vernot's statements and did not provide any proof against the evidence submitted by the applicant.
Taking into account the above summarized decision, it is clear that the testimonies and technical concepts rendered by experts in the field of interest, are becoming particularly important in the decision taken by the Colombian Council of State, to analize negative decisions in connection with patent grating, even more when said evidence is supported by scientific literature.
According to the above, the importance of this decision is the case law established by the Colombian Council of State in the sense that the inventive level should be analized with well grounded arguments and not merely with a simple assessment and when two references are cited they should be close to the invention subject matter.
On the other hand, it should be highlighted the importance of the testimonial evidence and the expert opinion in this kind of procedures.
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