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Case Law of the Boards of Appeal

 
 
4.3.2 Treatment by surgery not limited to surgery for a therapeutic purpose

In G 1/07 (OJ 2011, 134) the Enlarged Board of Appeal concluded that neither the legal history nor the object and purpose of the exclusions from patentability in Art. 53(c) EPC would justify a limitation of the term "treatment by surgery" to curative surgery (overruling T 383/03). Such a limitation would be contrary to the ordinary understanding of the word "surgery" as referring to the nature of the treatment rather than its purpose, and contrary to the fact that Art. 53(c) EPC defines three separate alternative exclusions thereby suggesting that these are not merely identical in scope. The Enlarged Board of Appeal observed in G 1/07 that the comparison between T 383/03 and T 1172/03 showed how inconsistent the decisions to be made could become if the term "treatment by surgery" was seen as limited to therapeutic surgery only.

The Enlarged Board in G 1/07 also considered the obiter dicta statement in G 1/04 that ''methods of surgery within the meaning of Art. 52(4) EPC 1973 include any physical interventions on the human or animal body in which maintaining the life and health of the subject is of paramount importance." It was stated that this definition cannot be understood in the sense that the term "treatment by surgery" is limited to therapeutic surgery. Saying that treatments by surgery include any physical interventions on the human or animal body "in which maintaining the life and health of the subject is of paramount importance" is not equivalent to saying that the term "treatment by surgery" is limited to therapeutic methods. On the contrary, the definition fits in very well with the previously established jurisprudence, decisions T 182/90 and T 35/99 having held that the term surgical treatment embraces those interventions which, whatever their specific purpose, give priority to maintaining the life and health of the human or animal body on which they are performed.