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Date Published

Note:  Under sec 18(2), human beings, and the biological processes for their generation, are not patentable inventions (see Human Beings and Biological Processes for Their Generation).

Therapeutic Treatments

Therapeutic treatments, i.e. processes or methods for medical treatment of the human body, having economic utility are patentable following the decision of the High Court in Apotex Pty Ltd v Sanofi-Aventis Australia Pty Ltd [2013] HCA 50, which concerned a method of preventing or treating psoriasis by administering leflunomide.  It was held (at [286]) that:

“Assuming that all other requirements for patentability are met, a method (or process) for medical treatment of the human body which is capable of satisfying the NRDC Case test, namely that it is a contribution to a useful art having economic utility, can be a manner of manufacture and hence a patentable invention within the meaning of s 18(1)(a) of the 1990 Act.”

However, the Court acknowledged there is a distinction between such methods of treatment and the activities or procedures of doctors (and other medical staff) when physically treating patients, e.g. surgical procedures (Apotex v Sanofi-Aventis supra at [287]).

Cosmetic Treatments

Cosmetic treatments, i.e. processes or methods for improving or changing the appearance of the human body, or any part of it, having a commercial application are patentable (Apotex v Sanofi-Aventis supra; Bernhard Joos v Commissioner of Patents 126 CLR 611).  In the latter case, the claim was for a process for improving the strength and elasticity of keratinous material, especially human nails and hair, by applying a particular composition.

Note: The approach of the PCT and some foreign jurisdictions, such as the EP, is to regard methods of treatment as non-patentable subject matter.

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