Pharma patents: Growing pains for second medical use inventions

It is 30 years since the European Patent Office (EPO) endorsed the practice of claiming new medical uses of known agents in the ‘Swiss-type’ claim format, namely “use of substance X in the preparation of a medicament/pharmaceutical composition for treating indication Y”. During that time, however, surprisingly little guidance on the scope and infringement of such claims has been forthcoming from the case law of the national courts in Europe—until now.