In a recent decision of the EPO Boards of Appeal, T2003/08 the following claim was held to be a legitimate medical use claim despite the fact that it seems to refer to a device.
1. Use of a specific ligand for human immunoglobulin
in the manufacture of a column having said ligand
coupled thereto for the treatment of a patient
suffering from dilated cardiomyopathy, said treatment
comprising passing plasma of the patient over the
column under conditions which effect the binding of
said specific ligand to immunoglobulin in the patient’s
plasma, thereby removing a significant portion of the
immunoglobulin from the patient’s plasma, and
reinfusing the plasma to the patient.
This is a significant decision because under EPO case law medical use claims must refer to medicaments which are ‘substances’ and this term has been judged to not include devices. In general therefore medical use claims cannot be used to obtain protection for devices at the EPO. However the present case demonstrates there is a lot of leeway in judging whether or not the invention concerns a ‘substance’. Here a ligand attached to a column was still judged to be a substance. That means that there is going to continue to be uncertainty in this area. Another implication is that when drafting cases which concern devices careful consideration should be given to way the way the claim is worded bearing in mind that it needs to refer to a substance.