It was only eleven years after the European Patent Convention (EPC) 1973 came into force that the Enlarged Board of Appeal (EBA) in EISAI/Second medical indication finally settled the issue of whether patent protection should be provided for second or further medical uses of substances or compositions. This issue had divided the delegations during the drafting of the EPC, where the pharmaceutical industry lobbied tirelessly for patent protection. The EBA’s decision did not sit comfortably with the text of Article 54(5) EPC 1973 and seemed contrary to the intentions of the drafters of the EPC. An examination of: (a) the intentions of the framers of the EPC; (b) the considerations that guided the EBA; and (c) the subsequent developments at the EPO, is poignant given the importance of patent protection for second and further medical uses in fuelling research and development in finding cures of illnesses. Consequently, the objectives of this paper are to: first, examine the travaux préparatoires of the EPC to see what light they shed on the interpretation of Article 54(5) EPC 1973; second, explore the origins of second medical uses and the decision of the EBA in EISAI/Second medical indication; third, delineate the requirements of the Swiss-type claim, including the form of claim; fourth, examine the decisions applying EISAI/Second medical indication to find out whether they have extended that decision beyond its original parameters; and, fifth, evaluate the recent changes heralded by the EPC 2000
