PATENTABILITY OF SURGICAL METHODS – NEW INSIGHTS FROM THE EPO

In its previous decision G1/07, the EPO Enlarged Board of Appeal (EBA) shed new light on the patentability of surgical methods, particularly those forming part of diagnostic methods. Based on this ruling the range of patentable subject matter is now limited in that methods that are surgical by nature but not necessarily by purpose are not deemed eligible for patent protection according to Article 53(c) EPC (cf. Newsletter issue of April 2010).

However, after issuance of G1/07 numerous complaints have been raised that the EBA refrained from providing any workable criteria for determining whether such surgical intervention is excluded from patent protection, that is, when an invasive step constitutes a substantial physical intervention on the body that requires professional medical skills and involves a substantial health risk.

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