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Intellectual Property and Commercial Court


2008 Xing Zhuan Su No. 78

Decision No. 2008 Xing Zhuan Su No. 78
Date May 7, 2009
Decision Highlight

In order to collect themonoclonal antibody for the patent, a complex process for extracting such monoclonal antibody is required, and the process involves numerous complex experiments. The complicated extraction process results in only one GenO95.9.2 hybridoma that falls within the scope as the disputed patent claims. Even though a person skilled in the art can rely on the disclosure of the disputed patent, for such skilled person to practice the claimed invention, he still needs to conduct undue experimentation. As a result, without depositing such GenO95.9.2 hybridoma in a designated institute, it would be unaccessible for such skilled person in the art, and they will remain unable to practice the claimed invention by following the patent. The biological material in the disputed patent claims is therefore not that the skilled person in the art can easily make. The appellant should have complied with Art. 30, Paragraph. 1 of the Patent Act to deposit, no later than the filing date, such hybridoma that was used to make the claimed monoclonal antibody. The appellant should have indicated in the application the name of the deposit institute, and the date and the serial number of such deposit. The appellant nonetheless has never deposited the hybridoma, and the specification of the disputed patent does not meet the requirement of “full disclosure that can enable a person skilled in the art to practice the invention.” The appellant thus violated Art. 30, Paragrah. 1 and Art. 26, Paragraph. 2 of the Patent Act.

Related Provision Art. 26, Para. 2 and Art. 30, Para. 1 of the Patent Act
  • Release Date:2020-11-13
  • Update:2020-12-07