- with readers working within the Retail & Leisure industries
The Boards of Appeal of the EPO (BoA) are the appeal body that reviews EPO decisions. In this case, they examined a claim that identified an antibody by an internal code name.
The real case: Your team is working with a clinical antibody known internally by a code name. You draft claims for a new indication and put this code name in the claim because, internally, there is no doubt about the molecule being targeted.
Claim 1 : (alternative claim)
"1. A medicament for use in the treatment of an
auto-inflammatory syndrome in a patient in need thereof, the
medicament comprising the human IL-1beta binding antibody ACZ885
and wherein said auto-inflammatory syndrome is Tumor Necrosis
Factor Receptor Associated Periodic Syndrome (TRAPS), and wherein
said antibody is parenterally administered at a dose between 0.1-50
mg of said antibody per kg body weight of the patient."
Beginning of the story: Lack of clarity under Article 84 EPC. This was not the main issue in the first instance. On appeal, the question became simple and decisive: can a third party know, from reading the patent, what exactly "ACZ885" is?
The BoA's teaching: An internal code name is not sufficient to define a claim, unless the file gives it a precise and unambiguous technical meaning. In this case, partial elements, such as sequence fragments and a reference to another document, were not sufficient to clearly identify the antibody covered by the claim.
Practical drafting tip: if you use an antibody code name in a claim, explicitly link it to a verifiable definition in the application, e.g., complete VH and VL or complete heavy and light chains with SEQ IDs, or a clearly identified combination of CDRs, or an epitope and an objective test with a quantified threshold, otherwise avoid the code name in the claim and only claim what a third party can verify.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
