UPC Central Division Revokes Patent Covering Covid-19 Treatment Remdesivir – Patent
The Unified Patent Court (UPC) Central Division in Milan revoked European Patent 3854403 on May 4, 2026, finding that the patent—which covered the use of Remdesivir for treating SARS-CoV-2—lacked an inventive step. Gilead Sciences, Inc. initiated the revocation action immediately following the patent’s grant, successfully arguing against the Academy of Military Medical Sciences (AMMS) before the case could progress through parallel proceedings at the European Patent Office (EPO).
Did You Know? The UPC Central Division reached its decision on May 4, 2026, well before the EPO’s opposition division deadline of June 30, 2026, highlighting the court’s role as a rapid forum for patent validity disputes.
How the UPC Evaluates Inventive Steps
The UPC utilizes a “holistic approach” to determine if an invention is truly inventive, a method distinct from the EPO’s traditional problem-solution approach. According to the court’s decision in Gilead v Academy of Military Medical Sciences (UPC_CFI_552/2025), this new method avoids the risk of hindsight bias by defining the objective problem based on the patent as a whole, rather than focusing solely on differences from a specific piece of prior art.
The court emphasized that the skilled person is a fictitious entity with average knowledge in a technical field. This person is not required to have specific company affiliations, and personal connections to pharmaceutical firms are considered irrelevant to their knowledge base. The court ruled that when experts testify, they should not be framed as the “skilled person” themselves, but rather as sources whose reasoning reflects that of the hypothetical expert.
Expert Insight: The Shift in Patent Strategy
Expert Insight: Samantha Carter notes that this ruling signals a significant shift in European litigation. By prioritizing the most recent and comprehensive scientific documents, the UPC is creating a clear hierarchy in prior art. Litigants can no longer rely on general cautionary statements to defend a patent; they must now provide substantiated technical reasoning to prove a “reasonable expectation of success” was absent at the time of the invention.
What Happens Next
The immediate future of the patent depends on whether the Academy of Military Medical Sciences chooses to appeal the revocation. If no appeal is filed, the patent remains invalid, effectively removing the specific legal protections it previously claimed for Remdesivir in Covid-19 treatment.
Looking ahead, the speed of this ruling suggests that companies may increasingly favor the UPC for validity attacks over the traditional EPO opposition path. Because Gilead acted immediately upon the grant of the patent, they secured a decision before the proprietor even responded to the parallel EPO opposition. This procedural speed likely makes the UPC a primary venue for future pharmaceutical patent disputes where timing is critical to market access.
Frequently Asked Questions
Why was the patent revoked?
The court determined the patent lacked an inventive step and suffered from insufficiency, ruling that the identification of Remdesivir as a treatment for the novel coronavirus was not inventive under the court’s holistic assessment criteria.
How does the UPC’s “holistic approach” differ from the EPO?
The EPO focuses on distinguishing features from a single piece of prior art, which the UPC suggests can lead to hindsight bias. The UPC instead defines the objective problem based on the entire patent description and claims.
Can older scientific documents be used to challenge a patent?
Yes, but the court indicated that the skilled person prioritizes recent and detailed sources. If a party relies on older documents, they must provide specific reasoning as to why a skilled person would choose those over more current publications.
How might the speed of the UPC’s decision-making process change the way pharmaceutical companies approach patent protection in Europe?