Second Medical Use Claims For Devices – An Uneven Playing Field?

European patent law offers extra protection for pharmaceuticals that is not available for medical devices. Second medical use claims for pharmaceuticals are routinely accepted in Europe, whereas the same style of claim is generally not permissible for medical devices. Recent case law has seen a shift towards rewarding new uses for existing medical devices, but achieving such protection requires care during prosecution.

Novel and inventive methods of treatment involving a medical device or a pharmaceutical cannot be patented in Europe due to a statutory exclusion, unlike in the US. Some compensation is provided through the granting of second medical use claims, which protect the product only when it is intended for use in an excluded method of treatment. However, there is an inconsistency between the way European law treats medical devices and pharmaceuticals. Obtaining second medical use claims for medical devices is challenging in Europe, whereas the same style of