4.5.2 Methods with both therapeutic and non-therapeutic indications
In T 144/83 (OJ 1986, 301) was concerned with whether an appetite suppressant was being used to cause loss of weight or to cure obesity. The board pointed out that the language of the claim in question clearly covered a method of cosmetic use and was unrelated to the therapy of a human or animal body in the ordinary sense. The board held that the fact that a chemical product had both a cosmetic and a therapeutic effect when used to treat the human or animal body did not render the cosmetic treatment unpatentable.
In T 36/83 (OJ 1986, 295) the board held that, in the treatment of comedones, a distinction could be made between an antibacterial effect (therapeutic) and a cosmetic effect. The use of the term "cosmetic" was held to be sufficiently precise, although the cosmetic treatment according to the application might also incidentally involve a medical treatment.
In T 469/94 the board found that the claimed, non-therapeutic effect of choline and the therapeutic effect of choline were not inseparably linked or correlated but, on the contrary, were readily distinguishable because, first, they involved two undoubtedly distinct groups of persons (or patients), specifically, on one hand, patients known to have a muscular disease, muscular injury or epilepsy and, on the other hand, healthy persons who would receive no therapeutic benefit from the treatment. Second, the times necessary for appreciating the different effects (days for the therapeutic effect and minutes or hours for the non-therapeutic effect) would appear to be so different that no unwanted overlap of the therapeutic and non-therapeutic treatment could occur. Therefore, the board held that the claim in question was directed to a non-therapeutic method.
In T 1916/19 the claimed methods and uses related to providing an anti-microbial effect to skin. In the view of the examining division this inherently implied a prophylactic treatment of several diseases since skin disinfection will always remove pathogenic bacteria. However, the board held that that there were at least some identifiable realisations of the method which were clearly non-therapeutic such as removing non-pathogenic bacteria responsible for unpleasant body odour.