There will be only be a few, limited, changes to the patentability requirements under EPC 2000. The legal fiction concerning methods for treatment of the human or animal body by surgery or therapy and diagnostic methods practised on the human or animal body will no longer apply. Previously, the legal fiction existed that such methods “shall not be regarded as inventions which are susceptible of industrial application”. In EPC 2000 this legal fiction has been deleted and such methods are instead specifically excluded from patentability.

Use-limited product claims may now be drafted for a second or further medical use of a known substance, and applicants will no longer be required to use the Swiss form of claim for such inventions. Although the EPO has indicated that the patentability of such claims will not be considered differently, it will be interesting to see if any disputes arise in national courts e.g. in infringement proceedings over the interpretation of a use-limited product claim compared with a conventional Swiss form of claim which arguably requires “the manufacture of a medicament” for infringement to occur.