Asked in Patents (Intellectual Property)

Q: pharmaceutical or medicinal

I'm sorry if this question is a stupid one... I just started my job as a patent researcher without solid legal background

Is there any difference between pharmaceutical composition and medicinal composition? I see that the word pharmaceutical is used more often, but legally speaking, does this difference change the range of the invention? If yes, how? Thank you very much.

2 Lawyer Answers
Peter D. Mlynek
Peter D. Mlynek
  • Patents Lawyer
  • Moorestown, NJ

A: Welcome to patent law! You do not need to have a solid legal background to be a searcher; just be very good in your science. A couple of notes about your question:

(1) There is no generally accepted definition of either "pharmaceutical composition" or "medicinal composition" in patent literature. Every term in the claim should be defined in the specification. So if you want to know what a particular term or a phrase means, then search through the descriptive portion of the specification.

(2) If a term is not well defined, then the term should be given its broadest reasonable interpretation ("BRI"). For the BRI standard, see Phillips v AWH Corp.

(3) As a chemical and pharmaceutical patent attorney, I would not hesitate to use either "a pharmaceutical composition" or "a medicinal composition" in the preamble of a claim. I've used both. And I think that the majority of pharmaceutical attorneys also use them interchangeably.

(4) However, strictly speaking, I could envision instances where under the BRI standard, "pharmaceutical composition" is not interchangeable with "medicinal composition". Depending on the use, I think that a court would interpret a "pharmaceutical composition" to mean a composition that comprises an API. Something that is administered to a patient that results in a therapeutic effect by chemical interaction. Although the phrase "medicinal composition" is very frequently used interchangeably with "pharmaceutical composition", I can see a possibility of the phrase "medicinal composition" being interpreted more broadly, namely, as a composition that is used for medical purposes. So what kind of compositions are used medically but are not drugs? I'd think that one example would be plaster cast material for setting bones. Or a polymer that is specifically designed to be used for stents.

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