The Enlarged Board of Appeal of the EPO issued a decision on February 19th (G02/08), that Swiss-form claims will no longer be permitted as a way to claim a “second medical use” of a bioactive agent – “The use of compound x to prepare a medicament to treat condition y”. Rather, the form of “first medical use” claims is to be used: “[Known compound x] for use in [treating condition y].” (First medical use claims are simply: “Use of compound x for treatment of condition y” – in older applications, first medical use claims often appear simply as “Use of compound x in medical therapy,” but this form is often deemed objectionably vague these days.)

The decision is not retroactive, and will apply only to applications having a priority date three months after the Decision is published in the Official Journal of the EPO (which has  not yet occurred). Thanks to Marks & Clerk UK for getting the word out so quickly.

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