Excluded Subject Matter (6) - Cosmetic methods

The European Patent Convention prohibits the grant of patents to "methods for treatment of the human or animal body by surgery or therapy" (Article 53(c) EPC). Cosmetic methods are not specifically excluded from patentability, but can sometimes be caught by the aforementioned exclusions if the cosmetic method has a therapeutic or surgical aspect. 

The key issue is that a method is excluded from patentability if it includes at least one feature defining a physical activity or action that constitutes a method step for treatment of the human or animal body by therapy or surgery, even if the primary purpose of the method is cosmetic. 

For example, a cosmetic method that also provides an anti-microbial effect to skin could be excluded from patentability if the antimicrobial activity removes pathogenic microorganisms from the skin and thereby provides a prophylactic therapeutic method. This will, however, depend on the specifics of the method and how it is claimed. Some realisations of the claimed method might be therapeutic in nature, such as where the individual is suffering from a bacterial skin infection or a wound. But other realisations may not be therapeutic, such as removing non-pathogenic bacteria responsible for body odour in a deodorant. These "mixed methods" that have both therapeutic and non-therapeutic aspects need to be treated with particular care at the European Patent Office. 

For a mixed cosmetic and therapeutic method to be patentable, it must be possible to clearly separate its distinct cosmetic and therapeutic elements. If so, a disclaimer to a "non-therapeutic" method could be introduced to remove the offending therapeutic element from the claim. Such disclaimers do not necessarily need to be disclosed in the application as originally filed (termed "undisclosed disclaimers") provided that the disclaimer only removes the subject matter that is excluded from patentability and no more.  

However, separating distinct cosmetic and therapeutic elements is not always possible, depending on the specifics of the method and how it is carried out. As an example from the case law, a method of eliminating plaque was found excluded from patentability because it inevitably had the therapeutic effect of preventing caries and periodontal disease, which could not be separated from its cosmetic effect of improving the appearance of the teeth. In such a case, a disclaimer that the method is "non-therapeutic" would not be allowed, because the disclaimer would render the claim scope void and would be self-contradictory. 

For mixed cosmetic and surgical methods, the involvement of surgery is likely to be more fundamental, making it difficult or impossible to remove the surgical element if present. However, the question may instead rest on whether the method step is truly surgical in nature based on the invasiveness of method, the required level of medical expertise, health risk and complexity of operation. For example, plastic surgery would be a cosmetic method that is excluded from patentability for being necessarily surgical, whereas tattooing or cosmetic hair removal may not be excluded. 

It is therefore important to consider if a cosmetic method could encompass an excluded therapeutic or surgical method when drafting patent applications for Europe, in order that the non-therapeutic or non-surgical aspects of the method are clearly identified and separate. 

This article is a part of our EPO Practice and Peculiarities series. Click here to explore