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Case Law of the Boards of Appeal

 
 
2.3. Other criteria - formulation of claims

In G 5/83 (OJ 1985, 64), claims directed to substances or compositions for use in any methods for treatment of the human or animal body were unquestionably directed to inventions which were susceptible of industrial application within the meaning of Art. 52(1) EPC 1973. This was not only expressly made clear in Art. 52(4), last sentence, EPC 1973, but could also be inferred from the definition of "susceptible of industrial application" in Art. 57 EPC 1973, namely that the invention "can be made or used in any kind of industry, including agriculture". The last sentence of Art. 52(4) EPC 1973 appeared to be a statement of the obvious, stemming from an abundance of caution.

In T 80/96 (OJ 2000, 50), the board found that the use of a substance to make a new pharmaceutical product without delimitation to an indication did not contravene the requirements of Art. 57 EPC 1973 in conjunction with Art. 52(1) EPC 1973. In the board's view, the requirement for clarity of the claims (Art. 84 EPC 1973) likewise did not mean that a claim for a process for preparing a particular product could not be drafted in the form of a use claim. No other meaning could be given to the individual process steps (see T 279/93).