Friday, 9 March 2012

First and second medical use

After reading the claims and the first page of the description, it is very clear what they wanted to test this year. First and second medical use. Articles 54(4) and 54(5). This is not be confused with second non-medical use.

The description makes clear that wrinkle treatment and deodorisation (claims 4 and 5) are cosmetic and non-therapeutic, while wound healing and pain alleviation (claims 2 and 3) are therapeutic.

When you want to attack a claim on a substance or composition for use in a therapeutic method, it is not enough to attack the structural aspects and the suitability for the claimed use only. You also have to show that the use is already known (novelty) or obvious (inventive step). For the cosmetic products, it is enough to find the structural features and the required suitability only.

UPDATE: This did turn out not to be so important. The medical use claims are attacked with inventive step attacks and the closest prior art documents already disclose the intended use. Furthermore, it is debatable whether a patch can be considered a substance or composition in view of Articles 54(4) and (5).

1 comment:

  1. In my opinion, a patch is not a substance or a composition (structural limitations). Nevertheless, the intended use was limiting in the present case, by limiting implicitly the active ingredient of claim 1, as "for pain reduction" implicitely means that the active ingredient is an analgesic, ... Or, the resulting patch would not be "suitable for..."