Pharmaceutical Patents Extended

In a landmark decision the Court of Appeal has approved patents that cover a new therapeutic use for a known pharmaceutical. Patent claims for these types of inventions are referred to as Swiss-form claims, because protection of this type was first allowed in Switzerland.

Such claims are particularly relevant in countries like New Zealand where the law bars patent monopolies on methods of therapeutically treating humans. In those countries, Swiss-form claims may be the only form of protection available where a new therapeutic use has been found for a known pharmaceutical.

Swiss-form claims allow pharmaceutical companies to obtain a measure of patent protection for their investment in discovering and commercialising these new indications or uses.

As an illustration, thalidomide, which is a known, if somewhat infamous pharmaceutical compound, has recently been used in Australia with unexpected but significant effects in the treatment of brain tumours. A Swiss-form patent claim might allow patent protection to cover this new use of thalidomide in making a pharmaceutical product for the treatment of brain tumours.

Clive Elliott, of patent and trade mark attorneys Baldwin Shelston Waters, leading Counsel for a group of the pharmaceutical companies in the case, said that the Court of Appeal was careful to limit the patent protection available. “The Court specifically maintained the exclusion from protection available in the area of methods of medical treatment of human beings. A doctor when treating a patient for a particular disease would not infringe a Swiss-form claim but someone who manufactured the pharmaceutical for use in treating that disease might well infringe the patent”.

Mr. Elliott said “The decision represents a pragmatic approach to a complicated issue by encouraging ongoing investment in pharmaceutical research while still allowing health professionals to practice without the threat of patent infringement”.

For background information see the Baldwin Shelston Waters website http://www.bswip.co.nz/articles/proze18.html

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