EPO upholds Compugen patent for immunotherapy cancer treatment

The European Patent Office has had a busy few months. One of the office’s most recent opposition decisions, which relates to a patent for a new cancer treatment, has gone in favour of the patent holder, Compugen.

The Israel-based drug discovery company develops cancer treatments for use at the clinical stage, for example implementing and overseeing the use of so-called ‘anti-PVRIG antibodies’ in clinical trials. Compugen has now successfully defended its patent EP 3 258 951 against opponent GlaxoSmithKline at the EPO. Once again, the issue of plausibility, as examined in the EPO’s recent G 2/21 decision, was at play.

Compugen outplays opponent

EP 951 covers the use of anti-PVRIG antibodies for cancer treatment. Anti-PVRIG antibodies are so-called ‘checkpoint inhibitors’, a type of immunotherapy, which help a patient’s immune system fight cancer cells that try to evade the immune response. Through its research, Compugen found that PVRIG is a so-called checkpoint, meaning it is a co-inhibitory receptor on immune cells, that can be inhibited using antibodies.

According to charity Cancer Research UK, checkpoint inhibitors are active against a wide range of cancers such as melanoma skin cancer and lung cancer. However, they can be less effective for other indications of the disease such as pancreatic cancer, or for malignant brain tumours. In its latest decision, the EPO Opposition Division has upheld EP 951, according to the main request, on the basis that the application’s priorities were valid.

Plausibility up again

In the case, G 2/21 was once again at issue. The second part of the recent EPO decision concerning plausibility states that, “A patent applicant or proprietor may rely upon a technical effect for inventive step if the skilled person, having the common general knowledge in mind, and based on the application as originally filed, would derive said effect as being encompassed by the technical teaching and embodied by the same originally disclosed invention.”

In this instance, the public hearing examined whether the patent’s priority applications sufficiently disclosed the invention. This is not the first time that the EPO has employed the importance of its G 2/21 decision, with regard to examining a patent application. For example, a recent case involving pharmaceutical company Stada and multiple opponents concerning the composition of suncream examined G 2/21 in the context of the patent’s indication as being for second medical use.

Markus Rieck

In the Stada case, the examiners referred to G 2/21’s assertation that an application must provide proof that the patent covers a claimed therapeutic field. Thus, the examiners found that Stada’s application for its patent EP 2 233 127 did not go far enough in its enablement, consequently nullifying the patent.

Show from in-house

British pharmaceutical company GSK represents opponent Surface Oncology, which also has an anti-PVRIG antibody in clinical trials. GSK has also filed oppositions against two other PVRIG-related patents held by Compugen, EP 3 653 221 B1 and EP 3 259 597.

Both opposition proceedings regarding EP 221 and EP 597 are at an early stage, with the EPO unlikely to hear arguments before the second half of 2024. In all proceedings, Elizabeth Anne Drury of GSK represents Surface Oncology or GSK. In the EP 951 proceedings a second opponent, apparently a strawman, did not attend the hearing.

A team of two patent attorney firms represent Compugen, consisting of lawyers from Fuchs Patentanwälte and Mewburn Ellis. Partner Markus Rieck led the team for the former IP firm. Previously, a team from patent attorney firm HGF had acted for Compugen in EPO proceedings, but the company switched to Fuchs IP in 2018. Fuchs IP has maintained a relationship with Compugen since 2013.

Recently, Rieck also worked alongside Malte Köllner of the firm Köllner & Partner at the German Federal Patent Court for Stephen Thaler, who is the developer behind AI system Dabus.

For Compugen
Fuchs Patentanwälte (Frankfurt): Markus Rieck (lead), Florian Rüßmann (both patent attorneys)
Mewburn Ellis (Munich): Thomas Wolter (patent attorney)

For Surface Oncology
GlaxoSmithKline (Brentford): Elizabeth Anne Drury (lead), Joshua Ellis Matley (both patent attorneys)

Opposition Division, European Patent Office, Munich
Nicole Renggli-Zulliger (chairperson); Jean-Christophe Marinoni (first examiner); Isabel Pérez-Mato (second examiner)