G 2/08 Explained

G 2/08
Enlarged Board of Appeal of the European Patent Office
Decision issued on 19 February 2010
Board composition
Chairman: Peter Messerli Members: P. Alting van Geusau, J.-P. Seitz, B. Günzel, U. Kinkeldey, S. Nathanael, B. Schachenmann
Headwords
Dosage regime/ABBOTT RESPIRATORY

G 2/08 is a decision issued by the Enlarged Board of Appeal of the European Patent Office (EPO) on 19 February 2010. The decision deals with the patentability of medications. More specifically, the decision deals with claims directed to second medical use.^[1] Second medical use claims pertain to medications to be used for particular conditions or diseases. In the case at issue, the second medical use pertains to a new dosage regime of a known substance.

The questions

The three questions referred to the Enlarged Board of Appeal were:

Answers to the referred questions

The Enlarged Board of Appeal answered these questions as follows:

The first two answers mean that a new dosage regime of a drug can render patent claims novel and inventive. A patent having such claims may be granted provided the other requirements of the European Patent Convention are met. More specifically, the Enlarged Board of Appeal approved the following specific uses of known medications:

• treatments of a novel group of patients,
• alternate routes or modes of administration,
• technical effects leading to genuinely new applications.^[2]

Swiss-type claims were introduced in decision G 5/83, but the EPC 2000 removed the cause of that approach. The third answer means that European patents having Swiss-type claims cease.^[3]

See also

• G 5/83, second medical indication, introducing Swiss-type claims that are obsolete in view of the present decision.

External links

• Decision G 2/08 of the Enlarged Board of Appeal of 19 February 2010
• Decision T 1319/04 (Dosage regimen/KOS LIFE SCIENCES, INC.) of 22 April 2008 (referring decision)

Notes and References

1. Margarete Singer, Romuald Singer, Dieter Stauder, Stefan Luginbühl, Europäisches Patentübereinkommen,, point 95, page 230, Carl Heymanns Verlag, 2010.
2. Kaisa Suominen, Peter de Lange, Andrew John Rudge, VISSER'S ANNOTATED EUROPEAN PATENT CONVENTION,, chapter 2.1, page 102, Wolters Kluwer, 2022.
3. Kaisa Suominen, Peter de Lange, Andrew John Rudge, VISSER'S ANNOTATED EUROPEAN PATENT CONVENTION,, chapter 2.3, page 103, Wolters Kluwer, 2022.