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Case Law of the Boards of Appeal

 
 
c)
Methods only concerning the operation of a device 

A typical class of cases in which the invention would be fully defined without requiring the presence of the potentially surgical step as a positive feature of the claim would be cases in which the invention only concerns the operating of a device. With respect to such inventions the boards of appeal have constantly held that a method which is only concerned with the operating of a device without any functional link between the claimed method and the effects produced by the device on the body does not qualify at all as a method for treatment within the meaning of Art. 52(4) EPC 1973 (Art. 53(c) EPC) (T 245/87, OJ 1989, 171, T 789/96, OJ 2002, 364). If, on the contrary, there is such a functional link the method is excluded from patentability (T 82/93, OJ 1996, 274).