T 2437/13 - Patent pertaining to a coronavirus

Key points

• The Board: “ The patent provides a virus comprising specific nucleic acid sequences isolated from a child with coryza, conjunctivitis and fever and suffering from bronchiolitis (see e.g. [0004], [0006]). The patent identifies the virus as a new member of the group 1 coronavirus most related to HCoV-229E a common cold virus. The technical contribution of the claimed invention can be defined as the provision of a further coronavirus. The solution to this technical problem is the virus characterized by the nucleic acid sequences depicted in Table 3 and Figure 19 []”
• “The board concludes from these data that even if the skilled person following the teaching of document D13 would, despite the odds, have found cells showing a cytopathic effect, it would not have had a reasonable expectation of successfully isolating a coronavirus with the structural and pathological properties of the claimed virus.”
• Claim 1 reads: “1. An isolated and/or recombinant nucleic acid having at least 95% sequence identity to a nucleic acid sequence as depicted in table 3 or comprising a sequence having at least 99% sequence identity to a nucleic acid sequence as depicted in figure 19.”
• The Board, about whether the priority of claim 1 is valid: “The nucleic acid sequences depicted in Table 3 and sequences having at least 95% sequence identity can be generated by standard techniques. There is thus no need for a virus to be deposited under Rule 31(1) EPC in order to disclose the claimed subject matter in an enabling manner. The board concludes that the first embodiment of claim 1 is directly and unambiguously disclosed in document P1.”
• As to inventive step: “In the board's view, a skilled person starting from document D13, would not have arrived at the claimed virus in an obvious way. First, the skilled person had no indication where to find a clinical specimen comprising the infectious agent responsible/causative for the 7 month old hospitalized child symptoms.

Disclosure: my firm was involved in this case.



EPO T 2437/13 -   link




IX. Independent claims 1 to 3 of the main request read as follows:

- "1. An isolated and/or recombinant nucleic acid having at least 95% sequence identity to a nucleic acid sequence as depicted in table 3 or comprising a sequence having at least 99% sequence identity to a nucleic acid sequence as depicted in figure 19.

- 2. An isolated and/or recombinant nucleic acid according to claim 1, comprising a sequence as depicted in table 3 or figure 19.

- 3. An isolated and/or recombinant proteinaceous molecule that is the ORF-2 Spike protein/S-gene sequence as depicted in figure 22; or that is selected from the group consisting of:
- the ORF 1ab replicase polyprotein sequence as depicted in figure 21;
- the 3ClPro Coronavirus polyprotein processing endoprotease sequence as depicted in figure 21;
- the RNA dependent RNA polymerase (pfam00680) sequence as depicted in figure 21;
- the ExoN 3' to 5' Exonuclease and helicase sequence as depicted in figure 21;
- the XendoU (homolog of) polyU-specific endoribonuclease sequence as depicted in figure 21;
- the 2'-O-MT 2: S-adenosylmethionine-dependent ribose 2'-orthomehyltransferase sequence as depicted in figure 21;
- the ORF-5 pfam01635, Corona_M, Coronavirus M matrix/glycoprotein sequence as depicted in figure 23; and
- the ORF la, replicase enzyme complex sequence as depicted in figure 20."