Antibody Examination Practice at the Canadian Patent Office: Immune to Change?

Résumé :

Patent applications in the antibody arts garner a level of scrutiny during prosecution unlike those in any other field. Objections employing highly standardized language are now routinely met under the aegis of lack of support, enablement, or utility defects. Prospective patentees in this art area are currently being shortchanged; in return for their public disclosures, applicants often achieve claims with the potential for very narrow interpretation. Paradoxically, would-be infringers are provided with clear instructions on how to practice variants of the invention, and potentially circumvent a narrow construction of the claims. Three types of objections are discussed herein: those denying claims to (1) antibodies that deviate from an intact set of CDR sequences, (2) antibody subtypes that have not been exemplified, and (3) antibodies defined by competitive binding. This paper reviews the objections in view of relevant jurisprudence, and against the historical backdrop of technical advances.