The enlarged board of appeal in the case G02/08 had to decide about patentability of a claim differing from the prior art solely in the dosage regimen for applying a known pharmaceutical compound or medicament for a known indication.
The enlarged board of appeal came to the conclusion that such a claim is allowable since any difference of a claimed subject matter compared to the prior art resulting in an unexpected effect can establish patentability.
In this decision the board further stated that a second medical use claim shall further not me formulated in the “swiss type” form no more. Rather the claim shall be formulated with reference to the formulation of actual article 53c) EPC. This claim formulation has to be used in all patent applications filed later than 3 months after publication of the decision in the official journal of the EPO.
Dr. Barbara Engels