Chapter 7: Second and Further Medical Uses
A INTRODUCTION The drafters of the European Patents Convention (EPC) appreciated the importance of research and development to the pharmaceutical industry. However, for policy reasons, methods of medical treatment were excluded from patent protection in Article 53(c) EPC. Seemingly by way of compensation, the second sentence of Article 53(c) EPC provides that the methods of medical treatment exclusion shall not apply to products, in particular, substances or compositions, for use in any of these methods. In other words, substances used in treating patients remained patentable notwithstanding the medical treatment exclusion. A further and more important provision directly impacting the pharmaceutical industry was provided for in Article 54(5) EPC 19731 for medical uses of known substances and compositions. The inventive and innovative function of the patent system clearly is very pronounced in this ﬁeld.2 Research into further medicinal uses of current drugs and known substances will be enhanced, and any refusal to recognise second-use patents would deprive inventors of their just reward. When a product is newly discovered, it can be claimed as a product and for that particular use. When a product is old, the exclusion of methods of medical treatment assumes particular signiﬁcance because the claim would be for the product for use in a particular therapeutic method, that is a claim 1 This is now found in Article 54(4) EPC 2000 (see also Article 54(5) EPC 2000). The ideas in this chapter have been derived, in part, from the following: E. Ventose,...
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