Jiancheng Jiang of Peksung Intellectual Property
describes recent case law relating to second-use inventions, and
asks whether the judgments will break through China's reliance
on codified laws
In China, as in other countries around the world, methods for
the diagnosis and treatment of diseases may not be granted a patent
right (article 25.1 of the Chinese Patent Law). Under the
examination practice of the State Intellectual Property Office
(SIPO), it is possible to use the so-called Swiss-type claim format
for seeking protection for a second medical use invention of a
substance so as to avoid the application of article 25.1.
SIPO's Guidelines for Examination explicitly provides that the
claim of a second medical-use invention can be drafted as "use
of compound X for preparing a medicament for the treatment of
disease Y". Such a claim type is considered as a use claim as
it is a method for preparing a medicament (part II, chapter 10,
section 4.5.2 of the Guidelines
