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Case Law of the Boards of Appeal

1.2. Basic principles

No general exclusion of inventions in the sphere of animate nature can be inferred from the EPC (T 49/83, OJ 1995, 545). It was held in T 356/93 (OJ 1995, 545) that seeds and plants per se should not constitute an exception to patentability under Art. 53(a) EPC 1973 merely because they represented 'living' matter, or on the ground that plant genetic resources should remain the 'common heritage of mankind'.

The case law indicates that any exceptions to patentability must be narrowly construed. In respect of Art. 53(a) EPC, see T 356/93 (OJ 1995, 545) and T 866/01, but also T 1374/04 (OJ 2007, 313); in respect of Art. 53(b) EPC, see T 320/87 (OJ 1990, 71), T 19/90 (OJ 1990, 476) and T 315/03 (OJ 2006, 15); regarding Art. 53(c) EPC (Art. 52(4) EPC 1973) see T 144/83 (OJ 1986, 301), T 385/86 (OJ 1988, 308) and G 1/04 (OJ 2006, 334).

Given the ratio legis of the individual provisions, however, this narrow interpretation produces different results: a claim which embraces plant/animal varieties, but does not claim them individually, is not excluded from patentability under Art. 53(b) EPC (G 1/98, OJ 2000, 111; T 19/90, OJ 1990, 476; T 315/03, OJ 2006, 15). According to the established case law of the boards of appeal, a method claim falls under the prohibition of Art. 53(c) EPC if it includes at least one feature defining a physical activity or action that constitutes a method step for treatment of the human or animal body by surgery or therapy (see point 4.2. below). By contrast, several method steps are required to define a diagnostic method within the meaning of Art. 53(c) EPC owing to the inherent and inescapable multi-step nature of such a method (G 1/04, OJ 2006, 334). In T 19/90 it was also stated that the object and purpose of the law (ratio legis) was not merely a matter of the legislator's intention at the time when the law was adopted, but also of their presumed intention in the light of changes in circumstances which had taken place since then.