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  • Steve Davey

Are methods of medical treatment patentable?

Methods of medical treatment are patentable in Australia, but not in New Zealand.

The Australian High Court decision of Apotex Pty Ltd v Sanofi-Aventis Australia Pty Ltd [2013] HCA 50, Sanofi-Aventis claimed that Apotex’s supply of a leflunomide formula to treat rheumatoid arthritis infringed their patent. Apotex argued that Sanofi-Aventis’ patent should be revoked on the ground that a method of medical treatment of the human body was not a patentable invention. On appeal, the High Court (by a majority of 4 to 1) held that a method of medical treatment, specifically the administration of therapeutic drugs to humans, constitutes patentable subject matter in Australia. In light of the High Court’s decision, methods of medical treatment are patentable subject matter in Australia.

The New Zealand Patents Act 2013 expressly excludes methods of medical treatment and diagnosis from patentability. The rationale is that medical practitioners should not be liable for providing treatment to those in need. However, such protection may still be pursued in New Zealand, to a certain extent, as Swiss-type claims especially where the invention is the new use of a known medicine. “Swiss style” claims are claims in the form ‘the use of compound X in the manufacture of a medicament for a new therapeutic use Y’.

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