T 0527/17 - Muscle Derived Cells

Key points

•  Claim 1 is directed to: " A pharmaceutical composition comprising human muscle-derived progenitor cells (MDCs) for use in improving left ventricular contractility of the heart wherein said improving comprises administering the MDCs to the heart of a human subject in need thereof" 
• Claim 3 is directed to: "MDCs for use in administration to the heart of a mammalian subject to thereby improve left ventricular contractility in said subject in need thereof" 
• Claim 3 is interesting in that it implies that human cells can be a "substance or composition" in the sense of Art. 54(4) and (5).
• By way of comparison, the border between compositions and apparatuses (for second medical use claims) is quite a topic of debate.
• " It was a matter of dispute whether the therapeutic indication in claim 1 constitutes an additional difference." 
• " The effect brought about by the differences agreed by the parties [i.e. the undisputed distinguishing features] is that the MDCs of claim 1 are suitable for improving the left ventricular contractility of the human subject from which they have been obtained." 
• " The objective technical problem to be solved may thus be formulated as providing a product suitable for improving left ventricular contractility in a human subject needing it." 
• " The skilled person wishing to translate the therapeutic effect on the myocardium shown in Example 7 of D9 from rodents to humans would therefore be prompted to use human myogenic cells isolated according to the method of D9 and disregard the methods of D5 or Example 9 of D8.

  Hence, the board holds that the subject-matter of claim 1 is inventive." 

• " The opponent did not raise any objection directed specifically against any of claims 2 to 5." 

• EPO T 0527/17

The link to the decision is provided after the jump.

https://www.epo.org/law-practice/case-law-appeals/recent/t170527eu1.html