Use of agents not excluded from patent protection

The patent claim of a German patent application was based on the use of essential fatty acids, i.e. a mixture of eicosapentaeonic acid ethyl ester (EPA) and docosahexaenoic acid ethyl ester (DHA) for producing a medicine with the medicine supposed to be used to prevent the death of a heart attack patient. One feature of […]

Dipl. Biotechnol. Vanessa Bockhorni

Dipl. Biotechnol. Vanessa Bockhorni

The patent claim of a German patent application was based on the use of essential fatty acids, i.e. a mixture of eicosapentaeonic acid ethyl ester (EPA) and docosahexaenoic acid ethyl ester (DHA) for producing a medicine with the medicine supposed to be used to prevent the death of a heart attack patient. One feature of the main claim concerns the oral administration of the medicine with a dosage of 0.7 – 1.5 g per day. Here, it had to be examined whether the dosage instruction was subject to the prohibition of patenting according to article 53, section 1 lit. c. EPC. Upon examination, the third Senate decided that this dosage instruction would not come under the prohibition of patenting as it was no therapy scheme serving to instruct the treating physician as to which dosage and at what times the essential fatty acids should be administered. Rather, the use of essential fatty acids is claimed which are prepared in a suitable packing for treating patients and which serve for treating patients in this formulation.

Decision dated November 22, 2011 Federal Patent Court– 3Ni 28/10, appeal filed X ZR 40/12; BPatG Annual Report 2012

 

Author: Dipl. Biotechnol. Vanessa Bockhorni (Patent Attorney), Update 2/2013
Patent Attorneys and Lawyers Bockhorni & Kollegen
Munich/ Germany
www.patguard.de