According to the Costa Rican Patent Law, methods of treatment or diagnosis are considered non-patentable subject matter. "Second use" inventions are also excluded from patentability in Costa Rica.
In jurisdictions where methods of treatments are unpatentable, the Swiss type claim was devised to enable the protection of the first, second or subsequent use of a known substance or composition. The practice of drafting Swiss type claims has not been accepted by the Costa Rican Patent Office (CRPO), considering that the format of such claims circumvents restrictions on the patentability of medical treatments under the Patent Law.
As a result of these regulations, there seem to be not enough protection against the use of a compound in the manufacturing process of another compound.
However, in a recently issued decision, the Administrative Court of Appeals held that a claim containing the language "the use of X for the manufacture of medicament for use in treatment of Y", was a valid claim, indicating that the word "use" makes reference to the manufacturing process. This is clearly a Swiss type claim format.
We consider this as an important change in order to enable uses to gain some patent protection, even though it is uncertain if this is an isolated case or if the CRPO will allow the filing of Swiss type claims as a general rule for new applications. Whichever the case, our office will be closely monitoring the outcome.