6.1 First or further medical use of known products
6.1.4 7.1.4 Surgical uses pursuant to Art. 54(5)
A claim defining a second surgical use may read "Substance X/ Composition comprising X for use in a method of intracardiac catheterisation as a protector of blood vessel walls".
If the independent claim is directed to a composition, the definition of the composition may be inserted before or after the term "for use".
Purpose-related product claims which do not define a surgical use excluded from patentability under Art. 53(c) are construed as claims directed to a product per se which is suitable for the claimed use.
The following table shows an example of a claim which does not define a surgical use within the meaning of Art. 53(c):
1. Substance X or |
for use in a method for hair removal by laser radiation |
The claim would lack novelty over prior art disclosing either the product per se in a form which could be considered suitable for the claimed use, or its first medical application.
The claim could be reformulated as "Use of [...] for hair removal by laser radiation" or as "Method for removing hair by laser radiation by using substance X [...]".
This amendment may be proposed by the examining division in the Rule 71(3) communication without the need to consult the applicant beforehand (see C‑V, 1.1, point (f)).