6.3.2 Statement of purpose in non-medical use claims in view of Article 52(4) EPC 1973

In T 36/83 (OJ 1986, 295) the board stated that having discovered for the first time the surprising properties of a chemical product already known in the state of the art and having shown those properties in various uses, the applicant had the right to have those uses protected. In the particular case the uses were presented in the description as two methods; a method of medical treatment and a method of non-medical treatment. Under Art. 52(4) EPC 1973 a method of medical treatment was not patentable but a product for use in that method certainly was. Claims 1 to 7 had been worded accordingly. The method of non-medical treatment was one falling within the general field of patentable inventions. There could be no objection to the patentability of either use or method claims in general (see G 5/83, OJ 1985, 64). The applicants had chosen the phrase "use as a cosmetic product of thenoyl peroxide". The board considered that this form of claim was acceptable in the case in suit. The board noted that when considering the exclusions from patentability under Art. 52(4) EPC 1973 the wording of the claim was important. In reaching this conclusion the board held the use of the word "cosmetic" in the context of that application to be sufficiently precise to exclude therapeutic uses, without the need for a specific disclaimer of such uses.

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