Too much information: Examples and case studies in patent applications

By David LochIt is a rare occasion for the results disclosed in a patent application to be reported widely in the mainstream Australian media, let alone the sporting media. Nonetheless, patent application PCT/AU2012/001497 published by WIPO in June this year, caused quite a stir recently in Australian sporting circles.

The patent application in question contemplated the use of the compound AOD9604 in the treatment of a wide range of musculoskeletal pathologies. Two provisional patent applications were originally filed with IP Australia in December 2011, which claimed the compounds proposed ability to improve the growth, repair and regeneration of cartilage and muscle. As such, the published application proposed a range of conditions treatable by AOD9604, including joint and muscle pathologies, such as osteoarthritis and muscle wasting. Notably, the PCT specification further “contemplates treating healthy individuals to cause an increase in muscle mass, strength, function or overall physique” as well as promote muscle repair following injury or overuse associated with training.

In support of the compounds’ aforementioned attributes, four case studies involving the treatment of injured “professional footballers” with AOD9604 were included in the specification. Despite being from an unspecified club or clubs, recent media reports subsequently linked these “professional footballers” to Essendon Football Club. The reports went on to allege that players at the club were deceived into taking part in a clinical trial involving AOD9604, which is a banned substance for professional athletes according to the World Anti-Doping Agency (WADA). The applicant has since denied using players as guinea pigs in a “secret drug trial”, but confirmed that the case studies involving the “professional footballers” were derived from anecdotal case notes regarding the historical use of AOD9604 provided to the company by the former sports scientist at the club.

Public scrutiny of the data contained within this patent specification and its implications, however, could not come at a worse time for Essendon, as the beleaguered club is currently under investigation for the alleged supply of peptide hormones like AOD9604 to players in breach of anti-doping laws. In its defence, the club has since refuted claims that the four “professional footballers” identified in the examples of the patent application are their own.

Regardless, this recent, albeit unusual, example is a reminder that patent applications are public documents and due care and consideration should be afforded supporting data and examples before they are included in a specification.

By David Lochdloch@fak.com.au