The German Federal Supreme Court decides on the patentability of a dosage of a pharmaceutical

On September 24, 2013, the German Federal Supreme Court has, in its decision "Fettsäuren" (X ZR 40/12) reversed a decision of the German Federal Patent Court and revoked a patent in its entirety. The Supreme Court has confirmed its case law according to which the disclosed discovery of the biological reasons of the effect on which a pharmaceutical is based, does not disclose a new technical teaching if the active pharmaceutical ingredient, the indication, the dosage and the further circumstances in which the active pharmaceutical ingredient is being used, corresponds to the use of the active pharmaceutical ingredient for the treatment of an illness which has been described before. Even the selection of a certain dosage within a previously known range generally does not lead to patentability. Exceptions to this rule are only justified if the dosage instruction defined in the claim evidently has specific technical effects which were not known in the state of the art.