d) Same illness

In T 108/09 the claims were drafted in the second medical use format according to decision G 5/83. The board noted that according to decision G 2/08 date: 2010-02-19 (OJ 2010, 456), Art. 54(5) EPC does not exclude a medicament already known to be used in the treatment of an illness from being patented for use in a different treatment by therapy of the same illness. It considered it appropriate to evaluate whether the breast cancer of claim 1 as granted was identical to the breast cancer according to document D2. The board noted that the tumours of document D2, being only resistant to tamoxifen, could be distinguished from the tumours of claim 1 as granted, which were additionally resistant to an aromatase inhibitor. This distinction meant that in the case at issue two different diseases or two subsets of a disease (tumour) were concerned. As a consequence, in analogy to the findings in T 893/90, the board established novelty. The subject-matter of claim 1 as granted was therefore novel over D2.