D.5 Further medical use
Notice from the European Patent Office dated 20 September 2010 concerning the non-acceptance of Swiss-type claims for second or further medical use following decision G 2/08 of the Enlarged Board of Appeal
1. In G 2/081, the Enlarged Board of Appeal has held that where the subject-matter of a claim is rendered novel only by a new therapeutic use of a medicament, such claim may no longer have the format of the so-called Swiss-type claim as instituted by decision G 5/83 (see Order, answer to question 3).
2. In order to ensure legal certainty and to protect the legitimate interests of applicants, the Board makes provision for transitional arrangements for the abolition of such claims. It sets a period of three months after the publication of decision G 2/08 in the Official Journal for future applications to comply with the new situation. Pending applications are not affected by this ruling. The relevant date for future applications is their date of filing or, if priority has been claimed, their priority date (see point 7.1.4).
3. Decision G 2/08 has been published in this issue of the Official Journal. Its publication date is therefore 28 October 2010, which means that the three-month period set by the board will expire on 28 January 2011.
4. Consequently, for inventions relating to second or further medical uses, European patents may not be granted in respect of European or international patent applications having a filing date or earliest priority date of 29 January 2011 or later if they contain Swiss-type claims. If any such application contains Swiss-type claims, the applicant will be invited to correct this deficiency.
5. In accordance with Article 76(1), second sentence, EPC, the relevant date for divisional applications is the date of filing or the earliest priority date of the parent application.