Overview

The European Patent Office (EPO) Enlarged Board of Appeal (EBA) announced the end of Swiss-type claims in a decision published February 19. It 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 a so called Swiss-type claim as instituted by decision G 5/83.” EBA decision G 2/08, point 7.1.3.

Swiss-type claims were instituted by decision G 5/83 in 1984 and were intended to constitute a narrow exception to Article 54(5) EPC 1973, which only allowed patent protection for the first medical indication of a known composition in medicament form. Decision G 5/83 allowed for patent protection of subsequent medical indications of a known medicament. The EBA reasoned that the EP legislator did not intend to exclude subsequent medical indications from patent protection. The Swiss-type claim took the form: “Use of [a known substance or composition] for the manufacture of a medicament for use in [new therapeutic application].”

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