Selection Patents

A selection patent is a patent granted for a particularly advantageous subset of a larger group of otherwise known entities.

For example, where a new class of chemical compound is discovered, a patent application may be filed for the class (referred to as the genus patent). Later, if it is discovered that a subset or selection of these chemical compounds shows unexpected suitability for a particular application, a second patent application may be filed claiming the selection and disclosing the previously unknown and unexpected characteristic. A selection patent therefore selects a subset of a previously known group of entities and distinguishes them based on a previously unknown property that is (more or less) unique to that subset.

August 18, 2022
A thermometer is shown on a pile of pharmaceutical pills.

Selection Patent for Apixaban Upheld by Federal Court of Appeal

2022 FCA 142: The Court also commented on the relevant date for determining if an invention has been sufficiently described in the patent application.
November 23, 2016

FC Invalidates Selection Patent as Obvious in View of Genus Patent

2015 FC 247 - The Federal Court reminds us that a selection patent will typically require something more than routine testing to justify the reclaiming of a particular compound within a previously known class of compounds.
March 28, 2016

Utility For A Pharmaceutical Patent Must Relate To How It Is Used, Not Simply to Its Properties

PAB 1384 - If a pharmaceutical patent is construed to make a promise, then that promise must relate to how the invention will ultimately be used – not simply to the properties of the pharmaceutical itself.