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Even if, among the substances having one property, substance having another property is described by chance, it should not be immediately recognized that substance having another property is described in cited.
IP News
2011.10.12
IP Court Case Summary:H22 (gyoke) 10322:
On June 9, 2011, the Intellectual Property High Court (IP High Court) supported JPO board of appeal’s decision that the patented invention is not easily invented.
The defendant has patent right of “glaucoma therapeutic agent comprising Rho kinase repressor and β blockers”.
The plaintiff insisted as follows;
– “Glaucoma therapeutic agent consisting of combination of HA1077 and timolol” is disclosed in cited invention.
– HA1077 is well-known as calcium antagonist, and also Rho kinase repressor.
– Therefore, “glaucoma therapeutic agent consisting of combination of HA1077 (which is Rho kinase repressor) and timolol” is substantially disclosed in cited invention.
IP High Court mentioned as follows:
– When it is determined whether those skilled in the art could create the invention based on “invention disclosed in a publication” in patent law 29-1-3 by patent law 29-2, it should be recognized from a matter described in a publication first.
– Even if HA1077 has Rho kinase inhibitory activity by chance, those skilled in the art cannot recognize that glaucoma treatment to use a medicine decreasing an intraocular pressure together with a medicine having Rho kinase inhibitory activity is described in cited invention.
As a conclusion, IP High Court supported JPO board of appeal’s decision that the patented invention is not easily invented.