| European Case Law Identifier: | ECLI:EP:BA:2010:G000107.20100215 | ||||||||
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| Date of decision: | 15 February 2010 | ||||||||
| Case number: | G 0001/07 | ||||||||
| Referral: | T 0992/03 | ||||||||
| Application number: | 99918429.4 | ||||||||
| IPC class: | G01R 33/28 | ||||||||
| Language of proceedings: | EN | ||||||||
| Distribution: | A | ||||||||
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| Title of application: | MR methods for imaging pulmonary and cardiac vasculature and evaluating blood flow using dissolved polarized **(129)Xe | ||||||||
| Applicant name: | Medi-Physics, Inc. | ||||||||
| Opponent name: | - | ||||||||
| Board: | EBA | ||||||||
| Headnote: | The questions referred to the Enlarged Board of Appeal are answered as follows: 1. 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. 2a. 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. 2b. 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. 2c. 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. 3. 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. |
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| Relevant legal provisions: | |||||||||
| Keywords: | Applicable provisions - Art. 112(1) EPC 1973 - Art. 53(c) EPC" Admissibility of the referral - yes The Vienna Convention - principle of narrow interpretation of exclusions - no One surgical step in a multi-step method - excluded from patentability - yes Limited to surgery for a therapeutic purpose - no Meaning of the wording of the exclusion - legal history - impact of jurisprudence and practice - ratio legis Nature of interventions - involvement of a practitioner - no" "Medical skills and health risks - further criteria Claim left to encompass a surgical step - no Disclaimer under Article 53(c) EPC - yes - subject to remaining requirements of EPC Omission - methods only concerning the internal operation of a device - yes - subject to remaining requirements of the EPC Possible use of non-surgical method in a surgical method - irrelevant, if non-surgical method complete teaching in itself |
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Source: http://www.epo.org/law-practice/case-law-appeals/recent/g070001ex1.html
Date retrieved: 17 May 2021
93 references found.
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