A pharmaceutical or cosmetic formulation patent seeks to cover the unique combination of an active ingredient with other ingredients making up a product that is used or administered to a subject. Such patent are extremely valuable where the active is not new or if a naturally occurring compound. Additional claim categories such a medical use claims and cosmetic method claims may also bolster protection for the active or the formulation.
Obviousness is an important concept in patent law and case law has found that patent claims might be obvious when features of the claimed formulation are found in the prior art, even if the features or characteristics of the formulation are not explicitly disclosed in the prior art. As such, careful thought is required to formulate arguments establishing an inventive step claims in this area based on, for example, unexpected results or properties achieved by the formulation and/or if the prior art taught away from the claimed invention. Such arguments must be balanced against European Patent Office requirements that any such unexpected results or properties must be obtained across substantially the entire scope of a claim. Drafting and prosecuting claims in this area, as well as opposing and defending claims in opposition proceedings, therefore requires a detailed understanding of the relevant European Patent Office case law.
Our patent attorney team has a wealth of experience in patenting pharmaceutical and cosmetic formulation inventions, including successfully drafting and prosecuting ‘opposition-ready’ applications for such inventions as well as subsequently defending granted patents. Our in-depth knowledge also places our patent attorney team in an ideal position for identifying weaknesses when opposing patents in this technical area.
