The European Patent Convention exclusion of diagnostic methods from patentability does not cover all methods related to diagnosis. The European Patent Office Enlarged Board of Appeal handed down a decision more than a decade ago providing guidance on whether or not a method might be a diagnostic method within the meaning of the exclusion and much Technical Board of Appeal case law has followed from this. Attorneys at CMS have worked on patent applications and EPO oppositions in this area for many years, carefully crafting claim language and applying and shaping the case law by pushing the boundaries as it develops. Our team has significant expertise across this field, from the discovery of a naturally-occurring correlation between a biomarker and a disease and thus identification of a new biomarker, to use of biomarkers in characterising patients.
For applications originating outside Europe, a European ‘health check’ can be very valuable at the drafting stage for inventions in this technical area so that suitable language can be included in the application to allow for alternative claim language for Europe.
