EPO: T773/10, European Patent Office (EPO), Board of Appeal, T773/10, 24 October 2014

The Board of Appeal rejected an attempt to apply the fiction of novelty of “medical” substances and compositions of article 54(5) EPC to a dialysis membrane. Contrary to T2003/08 the claimed dialysis membrane did not contain any further substance that might constitute an active ingredient. With reference to arguments in T2003/08, the board noted that it was not decisive that the dialysis membrane could perform the same function as a drug. The board also did not consider the membrane a single-use product consumed during use, because the reason for not re-using merely was fouling, which could theoretically be removed.

A full summary of this case has been published on Kluwer IP Law.