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Use of a compound unpatentable under section ?

Can anyone please confirm if use of the compound (first use) is unpatentable under section 3(i)

If a drug is used as an anticancer agent.

later i came to know it is used also as an anti hypertensive

I cannot claim the later use under section 3(d)

But the first use can it claimed and protected in India?

Will it come under swiss type claim?


 5 Replies

Rajesh Hazra (Mediator and Legal Counsel )     22 March 2013


Hi Navya

If my understanding is correct then first use can be protected.


Sy.patents (Freelance)     23 March 2013

Neither the swiss type claims nor the method of treatment type claims are patentable in India. I doubt if you will be able to claim the use per se.

I just wanted to ask you, if it is first use why the claim to the compound itself is not patentable? I do not seem to understand why do you need to claim the use instead of the compound itself. Was the compound already known without any known use or utility??



Dear sirs,

Actually Im confused with section 3(d) and  section 3(i)

As per section 3(d) , new use of a known compound is not patentable does it indirectly mean use of a compound is patentable?

Or it will come under section 3(d), method of treatment can be considered a use of a compound?


if u have a product patent in India , it protects the inherent properties of the compound and activity as well. Suppose one has a granted patent on dasatinib, they have protection for the dasatinib as it is and its activity as anticancer agent as well. No third person can have a patent on dasatinib as it is or on its activity but they can have a patent on process for the preparation of dasatinib orits formulation or they can claim for a dasatinib polymorphic form if they are in compliance with section 3(d). Correct?

if new use of dasatinib is not patentable under section 3(i) but does it mean known use is patentable i.e in the product patent. can we claim it. 

Under which section one cannot claim the use of a new compound.

Sy.patents (Freelance)     20 April 2013

You are correct that a patent to a product covers all its known as well as unknown uses till the expiry of the patent. As per the law you cannot claim the use (as the use in case of pharma/biotech products means prophylactic or therapeutic application barred by 3(i)), but I have seen some early cases where applicant drafted use claims dependent on product claim and got through with it. I guess those were just isolated cases.

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