4.2.2 Uniform approach: no need for practitioner involvement

In G 1/04 (OJ 2006, 334), concerning diagnostic methods, the Enlarged Board held that whether or not a method is a diagnostic method may neither depend on the participation of a medical or veterinary practitioner nor on the fact that all method steps can also, or only, be practised by medical or technical support staff, the patient himself or herself, or an automated system. The Enlarged Board highlighted the difficulty, if not impossibility, of defining the persons that were considered to be such practitioners on a European level within the framework of the EPC. For reasons of legal certainty, the European patent grant procedure should not be rendered dependent on the involvement of such practitioners (see also point 4.5.1 b) below).

Referring to G 1/04, the Enlarged Board of Appeal in G 1/07 (a decision concerning treatment by surgery) confirmed that whether or not a method is excluded from patentability under Art. 53(c) EPC cannot depend on the person carrying it out. The Enlarged Board in G 1/07 found that, although the findings in G 1/04 related to diagnostic methods, they dealt quite generally with the exclusion from patentability under Art. 52(4) EPC 1973 and were thus equally valid with respect to the other exclusion conditions contained in the new Art. 53(c) EPC.

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