4.4.2 Methods with both therapeutic and non-therapeutic indications

Whether or not a claimed invention is excluded from patentability under Art. 53(c) EPC depends upon the wording of the claim in question (see T 820/92, OJ 1995, 113; T 290/86, OJ 1992, 414; T 780/89, OJ 1993, 440 and T 1077/93). As a general rule, it is irrelevant for the purposes of Art. 53(c) EPC whether there are other therapeutic effects in addition to the claimed non-therapeutic use if those additional therapeutic effects can be clearly distinguished from the non-therapeutic use and are not covered by the subject­matter of the claim. If, however, the scope defined by the wording of the claim encompasses a use comprising a non-therapeutic element which is inseparably associated with a therapeutic element and that latter element is an essential part of the claimed method, the method is non­patentable under Art. 53(c) EPC (T 1635/09, OJ 2011, 542; T 290/86, OJ 1992, 414).

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