Therapeutic methods are subject to a rule, similar to that applicable to surgical methods, that they cannot be patented if they include at least one feature defining a physical activity or action that constitutes a method step for treatment of the human or animal body by therapy (G 1/04, OJ 2006, 334; G 1/07, OJ 2011, 134).

CLR I B 4.3.6 Data obtained during surgery

On the particular facts of the case before it, the Enlarged Board held in G 1/07 that 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 Art. 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.

CLR I B 4.3.5.C Methods only concerning the operation of a device

CLR I B 4.3.5.B Disclaimer

CLR I B 4.3.5.A Claim cannot be left to encompass surgical step

The Enlarged Board in G 1/07 (OJ 2011, 134) confirmed the established case law of the boards of appeal, according to which a claim encompassing an embodiment which was excluded from patentability under Art. 53(c) EPC could not be left unamended. Contrary to what the appellant had argued, it found that this principle had been upheld in G 1/98 (OJ 2000, 111).

CLR I B 4.3.5 Avoiding the exclusion of methods of treatment by surgery from patent protection under Article 53(c) EPC

a) Claim cannot be left to encompass surgical step

b) Disclaimer

c) Methods only concerning the operation of a device

CLR I B 4.3.4.C Apparatus claim – disguised method claim?

CLR I B 4.3.4.B Surgical step part of claimed method?

In a series of decisions, the boards have considered whether particular surgical steps form part of the claimed method or are simply preparatory measures which cannot be deemed such a part. They have arrived at different conclusions.

CLR I B 4.3.4.A Surgical nature of a method step

CLR I B 4.4.1 The term "therapy"

CLR I B 4.4 Therapeutic methods