Friday, October 09, 2015 T 1021/11 - Two independent claims for same medical use

In this examination appeal, the main request comprises two independent claims for the same medical indication of the same substance, one claim drafted in the Swiss-type format (use of substance X for the manufacture of a medicament for the treatment of disease Y) and the other claim following the provisions in Article 54(5) EPC (substance X for use in the treatment of disease Y).

In a telephone conversation with the rapporteur, the applicant was invited to comment on the presence of two independent claims for the same medical use in the same set of claims in this request.

The applicant commented that he has a legitimate interest to pursue both claim types in one set because determining the scope of those claims in potential infringement proceedings was a matter for national courts, as confirmed in decision G 02/08. 

In addition, both claim types were deemed allowable by the applicant since the patent application was pending when G 02/08 was issued (and thus the Swiss-type format was allowable) while the transitional provisions concerning the revised Convention Article 54(5) EPC applied to the present application.

Tuesday, September 01, 2015 T 943/13 - Not obvious as a food supplement

The opposition division revoked the following second medical use claim:

"1. A soluble dietary fibre for use in the treatment or reduction of the incidence of muscle wasting and/or chronic muscle wasting and/or sarcopenia, the dietary fibre comprising at least 30 wt.% of oligosaccharides having a chain length of 3-10 anhydromonose units."

I understand that document D12 appears to disclose a soluble dietary fibre for use in the treatment or reduction of the incidence of muscle wasting which contains the required oligosaccharides. However, D12 does not disclose that the oligosaccharide prevents muscle wasting. On this basis the board finds the claim inventive. 

To be a bit pedantic, claim 1 does not actually say that it is the oligosaccharides that prevent the muscle wasting, but from the description this is clearly the purpose of including them. 

The board also devotes an interesting discussion to the sufficiency of this broad claim.