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Q71. Second Use of a Known Pharmaceutical Composition

Q71. Second Use of a Known Pharmaceutical Composition
 Is second use of a known pharmaceutical composition patentable in Japan?

A71. Yes. A claim may be drafted as follows:
 “A pharmaceutical composition for treating (combating) disease X (second purpose) comprising a compound Y as an active ingredient.”
 The novelty of a pharmaceutical invention is judged from the two viewpoints; one is the compound contained in the composition, and the other is the pharmaceutical use (e.g., The Tokyo High Court Judgment of April 25, 2001 (Heisei 10(Gyo Ke)401) etc.). Therefore, even if there is no difference in composition from a known pharmaceutical composition and if the second pharmaceutical use is clearly different from the first pharmaceutical use, the pharmaceutical composition is patentable for the second use. However, if the second use is the species of the first use, for example, then the second use would not be distinguishable from the first use. In addition, if the second use can be derived from the first use (asthma treating composition vs. a bronchio-dilatation composition), then the novelty of the second invention would be denied.