Art. 54(4) EPC 1973 and Rule 23a EPC 1973 continue to apply to patents granted in respect of patent applications filed before 13 December 2007. Consequently, in such cases, the designated countries need to be taken into consideration when assessing the novelty of documents according to Art. 54(3) (see H-III, 4.2).
Art. 54(5) applies only to patents for which the date of the decision to grant the patent under consideration was taken on or after 13 December 2007 (Special edition No. 1, OJ EPO 2007, 197). If the decision to grant was taken before that date (the date of entry into force of EPC 2000), only "Swiss-type" claims are allowed for any second or further medical use (provided these claims meet with all the other requirements of the Convention).
Where the subject-matter of a claim is rendered novel only by a new therapeutic use of a medicament, that claim may no longer take the form of Swiss-type claim for European or international patent applications having a filing date or earliest priority date of 29 January 2011 or later (see G 2/08, OJ EPO 2010, 514, and G-VI, 7.1).