Webinar: Plausibility differences determine patent variations in US and EU

Unlike in Europe, the lack of a plausibility threshold in the US means that those applying for patents there are more likely to be granted a broader claim.

That’s according to Laurence Gainey, life sciences patent director at HGF, who discussed biotech patentability issues in Europe during a webinar hosted by LSIPR and HGF yesterday, September 27.

Gainey, along with HGF partner Iain Armstrong, drew parallels between Europe and other jurisdictions across the world.

“Apart from exclusions around patent-eligible subject matter, the US doesn’t have a plausibility threshold like what we are beginning to see develop in Europe. Therefore, the US is generally more likely to grant broader claims,” stated Gainey.

“The US also seems to be more permissive in allowing applicants to verify the alleged invention with post-filed data via declarations and post-published citations,” he added.

The panel looked into the origins of plausibility, stemming from the European Patent Office’s 1992 AgrEvo decision, which is where the broad concept of plausibility can be traced back to despite the case not specifically using the word.

In an article for the upcoming LSIPR Autumn edition, Armstrong defined plausibility as covering the information that must be present in a patent application to make it “plausible” to the skilled person that the invention does what is claimed.

Gainey and Armstrong also looked into the Johns Hopkins ( T1329/04), Sakj (T0609/02) and BMS (T0488/16) decisions, and the impact each had on plausibility in the EU.

To watch the webinar,  click here. The full presentation is also available on demand.

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