tag:blogger.com,1999:blog-8990057754240336385.post4207020317542205188..comments2024-02-27T09:18:36.160+01:00Comments on DeltaPatents Case Law blog: T 2369/10 - Second medical use of productsDeltaPatentshttp://www.blogger.com/profile/07830354704918972593noreply@blogger.comBlogger5125tag:blogger.com,1999:blog-8990057754240336385.post-76239113230468238962015-12-18T08:57:24.797+01:002015-12-18T08:57:24.797+01:00Ah, there you go. Thanks for the pointer. I knew t...Ah, there you go. Thanks for the pointer. I knew this must have been tried before...Sander van Rijnswouhttps://www.blogger.com/profile/08074604101159694993noreply@blogger.comtag:blogger.com,1999:blog-8990057754240336385.post-24892346257224323162015-12-18T01:10:39.612+01:002015-12-18T01:10:39.612+01:00A "use of a metal in treatment" is a met...A "use of a metal in treatment" is a method of treatment and hence excluded (Art. 53(c) EPC).<br /><br />The "metal for use in the treatment ..." claim will not survive, as the use does not consume the metal (Case Law, I.C.6.2.3 under e), referring to T 227/91, T 138/02, T 1099/09).Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8990057754240336385.post-85773322850201032212015-12-16T09:19:53.713+01:002015-12-16T09:19:53.713+01:00Ha! That is very clever.
I don't think it wil...Ha! That is very clever.<br /><br />I don't think it will work though. <br /><br />That use claim is equivalent to the corresponding method of manufacturing a neurostimulator (G 5/83). That claim is not novel, unless through the second medical use. But that is still a medical use of the neurostimulator, not just the metal. <br /><br />At best you'll trigger another round of interpretation of what it means to be 'substances or compositions'. For example, G 5/83 refers to 'treatment with chemical substances or compositions'. So my guess would be that this metal would not be a substance as in A.53(c). <br /><br />I have no better T on hand though. Somebody must have tried this?<br /><br />Perhaps you could get better results by avoiding the manufacture and neurosimulator completely?<br /><br />For example: Use of a metal in treatment of substance addiction by applying the metal to skin and running electric current through the metal. <br /><br /><br /><br />Sander van Rijnswouhttps://www.blogger.com/profile/08074604101159694993noreply@blogger.comtag:blogger.com,1999:blog-8990057754240336385.post-10189562202640055262015-12-15T22:31:42.883+01:002015-12-15T22:31:42.883+01:00Presumably the neurostimulator contains a metal (c...Presumably the neurostimulator contains a metal (copper wires, steel casing etc). Could the neurstimulator have been protected by 'Metal for use in the treatment of substance addiction by making a part of a neurostimulator of the metal, the neurostimulator having features x,y,z'?Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8990057754240336385.post-17576889374442180642015-12-12T17:06:46.615+01:002015-12-12T17:06:46.615+01:00This decision further clarifies, once more, a prob...This decision further clarifies, once more, a problem already occurring in older decisions, cf. T 227/91 or 775/97. These decisions have already made clear that first or second therapeutic uses only apply to substances and compositions and not to products as such.<br /><br />In case of first or second therapeutic use, the substance or composition disappears during its medical use, which is not the case of a product such as a nerve simulator or a scalpel.<br /><br />There is however one decision that ended up in actually protecting a device in the form of a Swiss-type claim, i.e. T 138/95. The, interesting, claim is as follows:<br /><br />Use of a polypeptide selected from growth factors and cytokines for the manufacture of a device for delivering to the blood stream of a patient a therapeutic dose of the peptide by systemic delivery by pulmonary absorption said device comprising reservoir means (8) for storing the polypeptide; a therapeutic dosage form of the polypeptide disposed in the reservoir means; dispersing means (4-7) for forming in a gas a suspension of particles comprising the polypeptide wherein greater than about 15% of the particles have a mean average diameter of about from 0.5. µm to µ4 m; means (1-3) for transporting the polypeptide to the dispersing means and means (9-12) for delivering the particle suspension to the alveoli of the patient's lungs."<br /><br />In this case the BA saw the invention in the new route of drug administration, but had probably not realized it actually was protecting the manufacture of a conventional nebulizer.<br /><br />It should also be noted that in the case of method claims using products, other than substances and compositions, for which another use than a medical use is disclosed, the medical use can be excluded by a disclaimer, cf. G 1/03. It is however necessary that non-medical uses were disclosed in the original disclosure.<br />Raoulnoreply@blogger.com