DECISIONS ANNOUNCED BY EPO ENLARGED BOARD OF APPEAL
March 2010
Three important decisions have been announced by the European Patent Office Enlarged Board of Appeal:
Decision G2/08 held that new and non-obvious uses of medicaments in the treatment of illnesses which they were previously known to treat, for example new dosage regimes, are patentable, and that the “Swiss” claim format will not be permitted for claiming medical use inventions in European patents having a filing or priority date more than 3 months after the decision is formally published (expected later this year). The so-called “product for use” format will be used instead of the “Swiss” format.
Decision G1/07 held that claims which encompass a method of surgery practiced on the human or animal body without specifying a surgical step are unpatentable, analogously to therapeutic methods. This contrasts with diagnostic methods, which have two distinct phases both of which must be present in the claim before it is unpatentable (see G1/04). G1/07 further suggests that “surgical” implies an invasive step representing a substantial physical intervention on the body which requires professional medical expertise and which entails a substantial health risk even when so performed. Therefore, an imaging method which comprises or encompasses such an invasive step is an unpatentable surgical method.
Decision G4/08, interpreting Article 153 EPC, held that a PCT applicant who uses English, French or German for the international application must maintain the selected language in the European regional phase, and cannot switch languages.
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