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  • Medical and cosmetic treatment

    In Australia, cosmetic processes or methods for improving or changing the appearance of the human body or any part of it which have a commercial application is a proper subject matter for a patent application. For example, a method for increasing the elasticity and strength of human nails and hair was found to be suitable for a patent application.

    Similarly, in Australia, methods of medical treatment are generally considered patentable. For example, a method of treating snoring and sleep apnea has been found to be patentable. Generally the same principles apply as for any process or method. There is no patentability exemption for medical and cosmetic treatments.

    On 4 December 2013 the High Court of Australia handed down the decision Apotex Pty Ltd v Sanofi-Aventis Australia Pty Ltd [2013] HCA (“Apotex“), which confirmed the view that methods of medical treatment were suitable for a patent application. The correct approach to determining the patentability of a method of medical treatment was found to be that set out in National Research Development Corporation v Commissioner of Patents (“NRDC” case) [1959] HCA 67, that is the invention must have an industrial, commercial or trading character in that it belongs to a useful art as distinct from a fine art, and consequently its value to the country is in a field of economic endeavour. Their honours concluded that methods of medical treatment, particularly the use of pharmaceutical drugs, cannot today be conceived as essentially non-economic.

    Apotex, however, appears to contemplate that an Australian patent for medical treatment may not be enforceable against medical practitioners who perform the medical treatment.  It would appear, however, that the Australian patent may be enforceable against the manufacturers and suppliers of any products specific to that treatment, provided the patent was drafted by a patent attorney for this purpose.

    The US has a similar view to Australia on the patentability of methods of Medical Treatment. However, in some countries it may be difficult to obtain patents for methods for medical or cosmetic treatment, or for diagnostic methods practiced on human or animal bodies. There have historically been patentability limitations in jurisdictions including Europe, New Zealand, China, Japan, Israel and Canada.