A second bite at the cherry

Second medical use claims have a long-standing history in European Patent Office (EPO) case law. As is well known, the first ever decision of the EPO’s Enlarged Board of Appeal confirmed the patentability of second medical use claims when written in the so-called Swiss-type format. The Enlarged Board in that 1984 decision, G5/83, held that protection was available for “specified new and inventive therapeutic application[s]”. In the years that followed the technical boards of appeal controversially discussed what exactly was meant by the “specified therapeutic applications” referred to by the Enlarged Board.