T 0004/98 (Liposome Compositions/SEQUUS) of 9.8.2001

European Case Law Identifier: ECLI:EP:BA:2001:T000498.20010809
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
Download and more information:
Decision text in EN (PDF, 1 MB)
Documentation of the appeal procedure can be found in the Register
Bibliographic information is available in: EN
Versions: OJ | Published
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)
Relevant legal provisions:
European Patent Convention 1973 Art 52(4)
European Patent Convention 1973 Art 54
European Patent Convention 1973 Art 56
European Patent Convention 1973 Art 83
European Patent Convention 1973 Art 84
European Patent Convention 1973 Art 106
European Patent Convention 1973 Art 114(2)
European Patent Convention 1973 Art 123(2)
European Patent Convention 1973 Art 123(3)
European Patent Convention 1973 R 57a
European Patent Convention 1973 R 58(4)
European Patent Convention 1973 R 67
European Patent Convention 1973 R 71a
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
Catchwords:

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Cited decisions:
G 0005/83
G 0002/88
T 0075/91
Citing decisions:
T 0320/99
T 1020/03
T 0978/04
T 1319/04
T 2377/09
T 0784/11
T 0333/14

15 references found.

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EPO Guidelines - G Patentability

Offical Journal of the EPO

Case Law Book: I Patentability

Case Law Book: V Priority

Case Law of the Enlarged Board

General Case Law