In this decision from 1983, the New Zealand Court of Appeal considered methods of treatment of humans to not constitute patentable inventions.
The Court ruled that New Zealand is bound by the TRIPS Agreement that obliges it to provide patent protection for all inventions, without discrimination. In the view of the Court, claims on the use of a known compound for the manufacture of pharmaceutical compositions in which the compound exhibits previously unknown therapeutic activity are inventions.
The Enlarged Board of Appeal decided that the presence of one surgical step in a multi-step method is sufficient to exclude the method from patentability. The exclusion of methods of surgery is not limited to a therapeutic purpose.
The Enlarged Board of Appeal (EBoA) decided that as a matter of principle, a European patent is to be granted for an invention which meets the patentability criteria, and, as such, the principle of a narrow interpretation is to apply to clauses excluding patentability, for instance of diagnostic methods. For a method to be considered a diagnostic method, it must include all the steps relating to it. There is no diagnostic method if one of the steps is lacking.
The Enlarged Board of Appeal decided on the 5th December 1984 on the question of novelty and second medical indications. It held that a patent must not be granted for claims directed to the use of a substance or composition for the treatment of the human or animal body by therapy. However, a patent may be granted with claims directed to the use of a substance or composition for the manufacture of a medicament for a specified new and inventive therapeutic application (“Swiss claim”).
In this case, the Australian Federal Court addressed the patentability of methods of treatment of the human body, how novelty can be destroyed and what amounts to secondary infringement.