Patentability: Distinguishing Cosmetic (Non-Therapeutic) Effects from Therapeutic Effects
Under French law (Art. L611-16 of the French Intellectual Property Code) as well as European law (Art. 53c of the European Patent Convention), methods of therapeutic treatment of the human or animal body are explicitly excluded from patentability or must be drafted according to specific formal requirements (see Articles 54(4) and/or 54(5) of the EPC or the second sentence of Article L611-16 of the French Intellectual Property Code). Furthermore, case law and/or the examination guidelines of the EPO and the INPI (French National Institute of Industrial Property) point out that the therapeutic purpose cover both curative and prophylactic treatments aimed at maintaining or restoring health.
Conversely, methods that are not intended for therapeutic purpose—for example, nutritional or aesthetic (cosmetic) methods—may in principle be protected, provided that their effects are clearly distinguishable from any therapeutic effect. Thus, for example, improving physical appearance or cleansing healthy skin have been accepted as non-therapeutic.
However, when the desired effect is inseparable from the treatment or prevention of a pathology (e.g., dental plaque removal, which is inherently linked to the prevention of cavities; or sun protection, which is also inherently linked to the prevention of erythema), the claim is interpreted as covering a therapeutic treatment method (prophylactic effect) that is excluded from patentability.
Recent decisions (e.g., Paris High Court, July 7, 2017, No. 15/00069; T1916/19; INPI OPP23 0017, 2024 - Patrinove v. Gelyma) illustrate the requirements of patent offices and courts regarding these issues: simply stating "cosmetic" or "non-therapeutic" is insufficient to distinguish the effects if the description or examples reveal an unavoidable therapeutic effect.
Patent Applicants must therefore carefully examine the mechanism of action and the relationship between non-therapeutic (e.g., aesthetic) and therapeutic effects in order to adapt their protection strategy accordingly.
In particular, the strategy for drafting patent applications must aim to defend the separability of therapeutic and non-therapeutic effects to avoid the specific pitfalls related to therapeutic and non-therapeutic applications in the field of patents. This is the price that must be paid for innovation in cosmetics to obtain effective protection without risking the invalidity of the patent(s) involved.
The REGIMBEAU teams monitor developments in case law on this subject and are available to assist you with your strategic planning and patent protection procedures.
