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Medical use claims at the EPO in advance of EPC 2000

Medical use claims at the EPO in advance of EPC 2000

06/09/06

The changes to the European Patent Convention (EPC) introduced by the EPC 2000 revision will enter into force by 13 December 2007 at the latest. However, some of the amendments will affect not only European patent applications filed after that date of entry, but also applications pending at that time and so should be considered in relation to applications that are currently pending and all future applications.

One such area relates to medical use claims. While the current form of the EPC allows claims to a substance or composition for use in a first method of medical treatment, claims to such a substance or composition for a second or further medical use have only been deemed allowable when in the so-called Swiss-type format, i.e. "the use of a substance or composition for the manufacture of a medicament for... a specified new and inventive use".

However, once amended, the EPC will allow claims directly to the substance or composition for that second or further medical use and so the Swiss-type claim format will no longer have to be adopted. Consideration therefore can be given in currently pending applications, and those to be filed even in advance of the entry into force of EPC 2000, to a move away from the Swiss-type claim format, which in essence comprises a method claim, to a claim directed to the product for that second or further medical use.