We are currently developing a new site to host the Patent Manual of Practice and Procedure. The BETA version of this site is now available for you to review. The information and content displayed in the BETA site is only available for testing purposes. Do not use or reference the information in the BETA site when making any decisions or actions regarding IP rights.

2.11.2.3.10 Swiss Claims

Date Published

Claim Format

The typical format of a Swiss claim is:

“The use of (substance X) for the manufacture of a medicament for the therapeutic and/or prophylactic treatment of (medical condition Y).”

A Swiss claim may also be worded as:

“The use of (substance X) in the manufacture of a medicament for the therapeutic and/or prophylactic treatment of (medical condition Y).”

It should be noted that although there may be minor variations in the wording, the Swiss claim format is quite specific. Whilst some minor variation in the format may be possible, the following are examples of claims that are not considered to be Swiss claims and are therefore to be construed according to the usual rules of construction:

a. (Substance X) in the manufacture of a medicament for the therapeutic and/or prophylactic treatment of (medical condition Y).

b. (Substance X) for use in the treatment of (medical condition Y).

c. The use of (substance X) in the treatment of (disease Y).

d. Commercial package containing as an active pharmaceutical agent (compound X) together with instructions for treating (condition Y).

e. A process for the manufacture of a medicament for use in the treatment of (medical condition Y) characterised by the use of substance X.


Claim Construction

Claims in the Swiss format (as discussed above) are construed as defining the manufacture of a medicament, wherein the medicament is intended for a specified medical treatment.  The novelty and inventiveness of Swiss claims is considered to derive from the new medical use and not from the manufacture of the medicament.  Therefore, a prior art disclosure of a method of making the medicament will not in itself anticipate a Swiss claim.  In order to anticipate a Swiss claim, a citation must disclose both a method of preparing the medicament and the specific treatment claimed.  This approach is consistent with that followed in the Federal Court (Otsuka Pharmaceutical Co., Ltd v Generic Health Pty Ltd (No 4) [2015] FCA 634).

Note: The above rule of construction for Swiss claims only applies to medical use claims, wherein the medical use relates to the treatment or prevention of disease in humans or animals.  It does not apply to claims wherein the intended use is non-medical, e.g. treatment of plants, weeds etc.  Claims directed to a non-medical intended use should therefore be construed according to the usual rules of construction.

Back to top