一覧に戻る Dosage Regimen in Switzerland

As has been reported before, the Enlarged Board of Appeal of the EPO has ruled out in its decision G 2/08 that it is possible to obtain patent protection under the EPC for a new and inventive method step in a claimed use of a medicament for treating an illness, like e.g. a dosage regimen, although the treatment of said illness with said medicament is already known from the prior art. In its recent decision 4A_437/2010 the Swiss Federal Court of March 4, 2011, had to decide on the question whether this ruling of the Enlarged Board of Appeal also applies to nullity proceedings concerning European patents under Swiss national law.

The first instance court handling the case underlying the above decision of the Swiss Federal Court ruled that a claimed dosage is unpatentable under Swiss patent law. It was concluded that a claimed dosage cannot render a second medical use claim of a medicament novel and inventive. In its above cited decision the Swiss Federal Court revoked the above ruling. It made clear in its above decision that the decision G2/08 of the Enlarged Board of Appeal of the EPO has to be followed concerning nullity of a European patent validated in Switzerland. Given the objective of the EPC of establishing legal uniformity, account must be taken of decisions of EPO bodies by national courts. Accordingly, the Swiss Federal Court decided that patentability is not necessarily excluded if the only feature claimed, which is not disclosed in the state of the art, is a dosage regimen for a known medicament, provided that the dosage regimen is new and inventive.

In this context, the Swiss Federal Court explicitly outlined that the freedom of medical treatment by a medical professional from patent protection should be ensured by national lawmakers. It is the objective of national lawmakers to provide for respective exemptions from the patent’s effects. The lack of such national provisions cannot justify a divergent interpretation of the EPC and a widening of patentability exclusions given in the EPC under its harmonized rules. In view of the above, the Swiss Federal Court decided that the first instance court has wrongly deemed a new dosage regimen to be non-patentable and has wrongly subsumed the claimed subject matter of the patent in suit under the exceptions of patentability given in the EPC.

http://archive.epo.org/epo/pubs/oj011/08_11/08_4521.pdf

Should you have any questions, please feel free to contact lenhard@mueller-bore.de

 

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