A patent application by German biotech company Oligoscience for a claimed novel way to optimise yield of human milk sugars failed; its supposedly new discovery identified no more than what a skilled person could adduce from existing common scientific knowledge. A new inventive step is required to justify any patent award creating monopoly rights.
Oligoscience Biotechnology GMBH claimed novelty for its process of genetically modifying bacteria to optimise commercial yield of human milk oligosaccharides. These HMOs are marketed as a prebiotic, feeding gut bacteria.
Commercial production of HMOs involves collection and purification of HMOs excreted from the cell wall of E.coli bacterium. Output is optimised by then ripping the bacteria apart, extracting remaining HMO from the debris.
Oligoscience’s claimed new invention was to genetically modify E.coli bacteria, causing it to self-destruct; a so-called ‘magnesium timebomb.’
Patent Office staff rejected its application for a patent.
Oligoscience appealed.
In the High Court, Justice Churchman ruled Oliogoscience’s ‘new’ process was not novel.
The court heard argument about what was the state of scientific knowledge as at date of Oliogoscience’s 2020 patent application.
‘Common general knowledge’ is assessed as that of a scientist in a particular field having appropriate qualifications and training.
Published scientific research does not become common general knowledge until it is generally known and accepted without question by a majority of those working in that field.
Justice Churchman ruled scientific papers published up to six years prior to Oliogoscience’s patent application opened up the possibility of genetically modifying E.coli to self-destruct under certain conditions.
Oliogoscience’s use of this method to increase production of HMOs was not a novel inventive step.
Oligoscience Biotechnology GMBH v. Commissioner of Patents – High Court (30.10.25)
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