European Case Law Identifier: | ECLI:EP:BA:2001:T000498.20010809 | ||||||||
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Date of decision: | 09 August 2001 | ||||||||
Case number: | T 0004/98 | ||||||||
Application number: | 90916409.7 | ||||||||
IPC class: | A61K 9/127 | ||||||||
Language of proceedings: | EN | ||||||||
Distribution: | A | ||||||||
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Title of application: | LIPOSOME MICRORESERVOIR COMPOSITION AND METHOD | ||||||||
Applicant name: | SEQUUS PHARMACEUTICALS, INC. (a Delaware Corporation) | ||||||||
Opponent name: | Inex Pharmaceuticals Corporation | ||||||||
Board: | 3.3.02 | ||||||||
Headnote: | 1. In accordance with the principles in G 5/83 and subsequent case law, the concept of second or further medical use can only be applied to claims to the use of substances or compositions (here, liposome compositions) for the preparation of a medicament intended for use in a method referred to in Article 52(4) EPC. (See Reasons, paragraph 8.1) 2. The concept of "therapy" or "therapeutic application" includes treatment of a particular illness or disease with a specified chemical substance or composition in a specified human or animal subject in need of such treatment. In the absence of the identification of at least (i) the illness or disease to be treated or the ailment to be cured or (ii) the nature of the therapeutic compound used for treating or curing the disease or (iii) the subject to be treated, a mere process feature cannot be construed as specifying a particular method of treatment or therapeutic application within the meaning of Article 52 (4) EPC. (See Reasons, paragraphs 8.1 and 8.2) 3. Unless a proven substantial Procedural violation relating to one or more issues in the first instance proceedings (here, violations alleged in relation to two issues, neither established) is so serious that the case must be remitted to the first instance with the effect that the whole decision under appeal is overruled, reimbursement of the appeal fee would not be equitable under rule 67 EPC if the appellant had no choice but tu appeal on other issues unaffected by an procedural irregularity (here, seven such issues). thus giving the appellant a "fee-free" appeal on such issues.(See Reasons, paragraph 13.3) |
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Keywords: | Second medical use (no): no indication of a therapeutic application within the meaning of Article 52(4) Non-therapeutic process for the preparation of a liposome-based formulation Novelty (yes): process features not disclosed in the state of the art Inventive step (no): alternative process for preparing liposome compositions obviously derivable from the state of the art Procedural violations (no): no reimbursement of appeal fee |
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Source: http://www.epo.org/law-practice/case-law-appeals/recent/t980004ex1.html
Date retrieved: 17 May 2021
15 references found.
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XOJ EPO SE 1/2021, p179 - Annex 1 - Index of published decisions of the boards of appeal and the Enlarged Board of Appeal - (as at 31 December 2020)
XOJ EPO SE 1/2020, p174 - Annex 1 - Index of published decisions of the boards of appeal and the Enlarged Board of Appeal - (as at 31 December 2019)
XOJ EPO SE 1/2019, p158 - XVI. - Index of published decisions of the boards of appeal and the Enlarged Board of Appeal - (as at 31 December 2018)