A typical class of cases in which the invention would be fully defined without requiring the presence of the potentially surgical step as a positive feature of the claim would be cases in which the invention only concerns the operating of a device. With respect to such inventions the boards of appeal have constantly held that a method which is only concerned with the operating of a device without any functional link between the claimed method and the effects produced by the device on the body does not qualify at all as a method for treatment within the meaning of Art. 52(4) EPC 1973 (Art. 53(c) EPC) (T 245/87, OJ 1989, 171, T 789/96, OJ 2002, 364). If, on the contrary, there is such a functional link the method is excluded from patentability (T 82/93, OJ 1996, 274).

In T 44/12 the board stated that, whether or not a method has to be considered a method for treatment of the human body by therapy is determined by the existence of a functional link or a direct influence of the method claimed in itself on a given therapy, such that the medical doctor's freedom of choice and of practice in this respect is hindered. In the present case the board considered that the subject-matter only concerned the operation of a device, without any functional link to the effects of the device on the body.