Patenting Substances for Medical Use

A novel use of a known drug is an established medical practice and can even result in a patentable invention.

Amidst pandemic, different substances have been considered for treatment of COVID-19 patients.

The malaria drug Hydroxychloroquine or Plaquilin was in the spotlight recently, as President Donald Trump suggested it as a promising cure.

1. Legal Provisions

Article 52(1) of the European Patent Convention (EPC): Patents shall be granted for any inventions, in all fields of technology, provided that they are newinvolve an inventive step and are susceptible of industrial application.

Article 53(c) EPC: Methods for treatment of the human or animal body by surgery or therapy and diagnostic methods practised on the human or animal body; this provision shall not apply to products, in particular substances or compositions, for use in any of these methods.

2. Exceptions for Medical Use

According to Article 54(4) EPC, any substance or composition, comprised in the state of the art, shall not be excluded from the patentability for use in a method referred to in Article 53(c) EPC, provided that its use for any such method is not comprised in the state of the art.

Furthermore, according to Article 54(5) EPC, any substance or composition shall also not be excluded from the patentability for any specific use in a method referred to in Article 53(c), provided that such use is not comprised in the state of the art.

3. Examples

Recently, President Trump suggested different approaches for fighting coronavirus:

  • treatment with UV radiation
  • treatment with laser radiation
  • treatment with Hydroxychloroquine (Plaquilin)
  • treatment with disinfectants

4. Patentability Checking patentability

The patentability of the above approaches can be checked by applying the EPC provisions.

Patentability Check: Hydroxychloroquine against COVID-19

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Patentability Check: Disinfectant against COVID-19

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Conclusion

Even if Hydroxychloroquine or Disinfectants are known substances used medicine, a purpose-related protection is still possible.

In particular, Hydroxychloroquine or a Disinfectant for use as a medicament against COVID-19 does not constitute an excluded subject matter and hence can be patented, provided such a use is new and inventive.

Methods of treatment, in particular with UV- or laser light, are excluded from patentability and are therefore not patentable. Apparatuses for implementing such methods can be patented, provided they are new and inventive.

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