IPPT20100215, EBA-EPO, Medi-Physics - Method for treatment by surgery

23-02-2010 Print this page
IPPT20100215

PATENT LAW

 

Excluded from patentability: method for treatment by surgery
• A claimed imaging method, in which, when carried out, maintaining the life and health of the subject is important and which comprises or encompasses an invasive step representing a substantial physical intervention on the body which requires professional medical expertise to be carried out and which entails a substantial health risk even when carried out with the required professional care and expertise, is excluded from patentability as a method for treatment of the human or animal body by surgery pursuant to Article 53(c) EPC.

 

A claim comprising a step encompassing an embodiment of excluded method has to be amended
• A claim which comprises a step encompassing an embodiment which is a "method for treatment: of the human or animal body by surgery" within the meaning of Article 53(c) EPC cannot be left to encompass that embodiment.

 

Disclaiming embodiment of excluded method
• The exclusion from patentability under Article 53(c) EPC can be avoided by disclaiming the embodiment, it being understood that in order to be patentable the claim including the disclaimer must fulfil all the requirements of the EPC and, where applicable, the requirements for a disclaimer to be allowable as defined in decisions G 1/03 and G 2/03 of the Enlarged Board of Appeal.

 

Allowable omission of surgical step from claim
• Whether or not the wording of the claim can be amended so as to omit the surgical step without offending against the EPC must be assessed on the basis of the overall circumstances of the individual case under consideration.

 

No treatment by surgery merely because data by method obtained allow a decision on course of action for sutrgical intervention
• A claimed imaging method is not to be considered as being a “treatment of the human or animal body by surgery” within the meaning of Article 53(c) EPC merely because during a surgical intervention the data obtained by the use of the method immediately allow a surgeon to decide on the course of action to be taken during a surgical intervention

 

IPPT20100215, EBA-EPO, Medi-Physics - Method for treatment by surgery