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Case Law of the Boards of Appeal

 
 
b)
Therapeutic and non-therapeutic effects distinguishable 

In T 144/83 (OJ 1986, 301) the board accepted the patentability of a claim worded in such a way that it clearly sought protection for a method of treating the human body for cosmetic purposes but not for the therapeutic application which was also possible. 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 description expressly disclosed two very different properties of a compound used in the treatment of comedones, i.e. its anti-bacterial and its hygienic action. The application showed that pharmaceutical and cosmetic preparations could have very similar, if not identical, forms. The distinction was clearly set out in the description as filed. The board decided that the cosmetic application of a product which also had a therapeutic use was patentable, since the applicants had only claimed in respect of "use as a cosmetic product". 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 it had to be ascertained whether the non­therapeutic effect according to the application at issue was distinguishable from the therapeutic effect of choline. The board found that the two effects of choline were not inseparably linked or correlated but, on the contrary, were readily distinguishable because they involved groups of persons (or patients) undoubtedly distinct. The one consisted of patients known to have a muscular disease, muscular injury or epilepsy, whereas the second comprised healthy persons who would receive no therapeutic benefit from the treatment. Moreover, the times necessary for appreciating the different effects (days for the therapeutic effect and minutes or hours for the non­therapeutic effect) would appear to be so different that no unwanted overlap of the treatment could occur. Therefore, the board held that the claim in question was directed to a non­therapeutic method.