AFD China Concludes a Successful Pharmaceutical Case
Regarding a subject matter in related to a method for treating diseases, sometimes it might be difficult for foreign clients to understand the related provisions of the Patent Law. Most foreign patents / patent applications in this specific category may need further amendments to be in conformity with the Patent Law.
What we met when working on a PCT national phase application of method and device used on post-harvest organs is such a case. After overcoming the inventiveness and unclearness issues raised in the First Office Action, we received the Second Office Action, in which the Examiner pointed out that the subject matters of the application are unpatantable because they belongs to methods for the treatment of diseases.
After further reviewing and studying on the application documents and the opinions in the Action, AFD Team came up with the responding strategy which includes three crucial aspects.
First, we represented arguments on the object to be treated. In this case the applicant seeks protection for a method for treatment of an organ after harvesting from a brain dead donor, while a method for treating disease should be a process directly performing on a living human/animal body. Therefore, the object to be treated in this case does not meet the factor of object for unpatentable methods for the treatment of diseases.
Secondly, a method for treating disease is for identifying, determining or eliminating the diseases or conditions. The method here is for treating an organ after harvesting from a brain dead donor. Thus the method is not for treating any disease, not meeting the factor of disease for unpatentable methods for the treatment of diseases.
Additionally, the time frame for a method for treating disease is on a living human/animal body. But the method in this case is on an organ left from a brain dead donor’s body for harvesting and prior to any subsequent transplantation or other uses, not meeting the factor of time frame for unpatentable methods for the treatment of diseases
These arguments are persuasive and successful, so this application is granted.