CLR I B 4.5.1.B Involvement of practitioner

The Enlarged Board of Appeal held that the classification of an activity as having a diagnostic character did not depend on who was involved. The wording of Art. 52(4) EPC 1973 (now Art. 53(c) EPC) was unequivocal in that the exclusion related only to the method, and not to the person carrying out the method. To allow the grant of a European patent to depend on the involvement of such a person would therefore introduce legal uncertainty into the patent granting procedure. Thus, whether or not a method was a diagnostic method should depend neither on the participation of a medical or veterinary practitioner, through being present or bearing the responsibility, nor on the fact that all method steps could also, or only, be practised by medical or non-medical support staff, the patient himself or herself or an automated system (see also G 1/07, OJ 2011, 134). Moreover, no distinction is to be made in this context between essential method steps having diagnostic character and non-essential method steps lacking it.

5 references found.

Click X to load a reference inside the current page, click on the title to open in a new page.

EPC Articles

Case Law Book: I Patentability

Case Law of the Enlarged Board