A Milestone Decision On The Patentability Of Second Medical Use Claims

As per the EPC definition, a substance or composition that is already known to have been used in a "first medical use" may still be patentable for any second or further use, provided that said use is novel and inventive.

Even though the first medical use was the subject of patent protection within the EPC 1973, this convention did not regulate that the substance could be subject to a patent in different medical uses (second/further medical use). While there was no regulation in EPC 1973, claims regarding second and further medical uses of a known substance could be protected following case G5/83 of the EPO Enlarged Board of Appeal, provided that the claims are written in the "Swiss-type claim" format. As of the EPC 2000 amendments, a basis for second and further medical uses has been introduced in articles 54 (4) and (5) EPC.