Swiss-type claim

A Swiss-type claim is a form of claim worded as follows: use of substance X for the manufacture of a medicament for the treatment of disease Y. It was accepted by the Enlarged Board of Appeal of the European Patent Office in 1984 to allow protection of a second medical use without claiming a method of treatment, which is excluded from patentability. Its name comes from the practice of the Swiss patent office, which was the first to accept it. The Swiss-type claim is still present in a very large number of patents in force.

Origin and abandonment of the Swiss-type claim

First, the Swiss-type claim circumvents the exclusion of methods of treatment by formally relating to a manufacturing process, the novelty of which lies in the therapeutic purpose of the medicament manufactured. Next, the revision of the European Patent Convention that entered into force in 2007 expressly introduced the possibility of claiming a known substance for a specific use in a method of treatment, in the form of a purpose-limited product claim. Finally, the Enlarged Board of Appeal held in 2010 that the Swiss-type claim was no longer admissible for applications filed from a date set in 2011, the new claim format offering the protection sought. The decisions are available on the website of theEuropean Patent Office.

The scope of the Swiss-type claim in litigation

The coexistence of the two claim formats raises a question of scope. The purpose-limited product claim protects the product itself when it is intended for the claimed use. The Swiss-type claim protects a manufacturing process and, by extension, the product directly obtained, which has led the courts to consider the place of the generic manufacturer’s intention and knowledge in assessing Infrigement. The decisions issued in the United Kingdom, Germany and France in skinny label disputes have given different answers, and the question remains debated before the Unified Patent Court.

Key points

In practice, the analysis of a pharmaceutical patent begins with identifying the format of its claims, which drives the infringement and defence strategy. The firm conducts these analyses in second medical use disputes, as presented on the page pharmaceutical patents and regulation and on the entry claims.