The Patent Protection Of Medicinal Use Invention

This dissertation mainly starts with the related patent system in the pharmaceutical field in China,and discusses some problems facing the current pharmaceutical patent system.China's current patent system in the pharmaceutical field is mainly reflected in the following aspects: Firstly,Article 25 of the Patent Law of China stipulates that "diagnosis and treatment of diseases" cannot be granted a patent.This is also the typical feature of the medical technology field.Since the medical field involves a social ethical and humanitarian issue.Internationally,it is considered inhumane to restrict doctors' right to treat diseases freely.Therefore,most countries believe that such inventions should not be granted patents.However,innovation in the pharmaceutical field is not easy,it requires high cost?high risks,and takes a long time.Therefore,if we cannot provide patent protection for those R&D results,it is obviously not conducive to the development of the pharmaceutical industry,and impair the innovation.Therefore,most countries have to make special designs for the patent system in the medical field.Taking China as an example,it is stipulated in the "Patent Examination Guidelines" that drugs themselves can be granted patents.And methods for the preparation of drugs can also be granted patents.In addition,the patent law of our country stipulated the patentability protection of medical use inventions in the early stage of its establishment.However,the medical use invention is also an invention about a treatment method,but this treatment method is realized by means of medicine.Therefore,in order to grant protection of patents for medicinal use inventions,but not to conflict with the “diagnosis and treatment methods for diseases” that cannot be granted patent,there has been an adaptation writing of the claims called “Swiss-type claim”,because it was first invented in Switzerland.That is,the claim form of the medical use invention is written as a manufacturing method type claim.Unfortunately,this brings a series of problems.This type of claim,although it has been transformed formally into a manufacturing method type claim,does not change the essence of the invention.it actually still the use invention.Thus,its protection rules should also apply to the use invention-related systems.According to the protection rules of the method invention,the manufacturing method-type claims can be extended to cover the products itself,but whether this extended protection rule also applies to the use invention is a problem worth exploring.In addition,since this claim is considered as a manufacturing method type claim,can it be considered that the use behavior can also be regarded as a manufacturing method? Does it expand the interpretation of manufacturing methods? Third,since the invention has been regarded as a manufacturing method,does it also require that the characteristics defined in the claims should substantially influence the manufacturing process? Does the issue of patentability for pharmaceutical use inventions such as dosing method should also be protected?...