In G 1/07 the Enlarged Board upheld the principle confirmed in opinion G 1/04 (OJ 2006, 334) and underlying the whole body of practice and jurisprudence hitherto (see e.g. T 820/92 (OJ 1995, 113)), that a method claim falls under the prohibition on patenting methods for treatment by therapy or surgery now under Art. 53(c) EPC if it comprises or encompasses at least one feature defining a physical activity or action that constitutes a method step for treatment of a human or animal body by surgery or therapy. The principle is not only formally justified by the fact that the exclusion under Art. 53(c) EPC does not contain any limitation as to the defined methods being excluded only when claimed as such. More importantly, it is also justified as to substance, i.e. it enables the legislative purpose served by the exclusion to be achieved (see point 4.1 above).
In T 923/08, the board found that a surgical step was to be deemed an essential feature of a method if it was necessary with a view to fixing a measuring device indispensable for the method's performance, even if none of the claimed method features was expressly concerned with it (see point 4.3.4 b) below).