一覧に戻る Treatment by Surgery

In its recent Decision G 1/07 (to be published) the Enlarged Board of Appeal of the European Patent Office (EPO) has commented on the limitations applicable to the patenting of methods containing a step which is to be regarded as a method of treatment by surgery under the European Patent Convention (EPC).

Art. 53(c) EPC stipulates that methods for treatment of the human or animal body by surgery are not to be regarded as inventions which are susceptible of industrial application. According to a definition given in the Opinion G 1/04 of the Enlarged Board of Appeal of the EPO (OJ EPO 2006, 334), methods of surgery within the meaning of Art. 53(c) EPC include any physical interventions on the human or animal body in which maintaining the life and health of the subject is of paramount importance. Jurisprudence interpreting the above definition has identified two aspects of a method of surgery, namely the purpose of the physical intervention on the one hand and its nature on the other hand.

Regarding the purpose of the physical intervention, the Enlarged Board of Appeal has stipulated in its Decision G 1/07 that the meaning of the term “treatment by surgery” is not to be interpreted as being confined to surgical methods pursuing a therapeutic purpose. According to the reasoning set out in the above Decision, neither the legal history nor the object and purpose of the exclusions from patentability in Art. 53(c) EPC justify a limitation of the term “treatment by surgery” to curative surgery, contrary to what the ordinary meaning of the word “surgery” implies.

Further, regarding the nature of the physical intervention, it is emphasized in the Decision G 1/07 that Art. 53(c) EPC has the purpose of ensuring the freedom of the medical profession to apply the treatment of choice in the interests of public health. Therefore, it has to be determined on a case-to-case basis whether a claimed method comprises an invasive step constituting a substantial physical intervention on the body which requires professional medical skills to be carried out and involves a substantial health risk even when carried out with required care and expertise. Only if the above prerequisites are met an exclusion from patentability based on Art. 53(c) EPC is justified as outlined in the Decision G 1/07.

Download the full text of the decision G 1/07 “treatment by surgery” of the Enlarged Board of Appeal of the EPO under:

http://www.mueller-bore.de/tl_files/Decisions_EPO/Treatment_by_Surgery.pdf

Should you have any questions, please feel free to contact lenhard@mueller-bore.de

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