Patent decision

BL number

O/1082/22

Concerning rights in

GB2113325.1

Hearing Officer

Dr L Cullen

Decision date

8 December 2022

Person(s) or Company(s) involved

Mr Peter J Mollick

Provisions discussed

Patents Act 1977, Sections 14(3), 14(5)(c)

Keywords

Sufficiency, Support

Related Decisions

None

Summary

The application concerned the use of the herb thyme to treat the viral disease COVID-19. The application described the illness of a single patient and his subsequent recovery whilst taking multiple doses of thyme.

The Hearing Officer (HO) took note of the seven principles for plausibility when assessing the sufficiency of disclosure of second medical use claims set down by the UK Supreme Court in Warner-Lambert Company LLC v Generics (UK) Ltd (t.a. Mylan) & Anor. [2018] UKSC 56. Particular note was taken of the strict requirement that the second medical use invention must be rendered plausible by the application as filed, by evidence or by a priori reasoning, and not by later-filed evidence. The HO also took note of the requirements for support for second medical use claims as set down by the High Court in Prendergast-™s Applications.

The HO considered whether, at the priority date, the person skilled in the art would have found it plausible from the application as filed that thyme does treat COVID-19. In assessing the information provided in the application, the HO decided that, on the balance of probabilities, the skilled person would not be able to identify positively the illness from which the patient was suffering such that they could not say that thyme has efficacy against COVID-19.

It was found that the claimed therapeutic use of thyme did not meet the requirements of section 14(3) or of section 14(5)(c) of the Act. The application was refused under section 18(3) of the Act.

Full decisionO/1082/22  362Kb