Involvement of practitioner 

A further question referred to the Enlarged Board of Appeal concerned to what extent the involvement of a practitioner was decisive.

The Enlarged Board of Appeal held that the classification of an activity as having a diagnostic character did not depend on who was involved. The wording of Art. 52(4) EPC 1973 (now Art. 53(c) EPC) was unequivocal in that the exclusion related only to the method, and not to the person carrying out the method. To allow the grant of a European patent to depend on the involvement of such a person would therefore introduce legal uncertainty into the patent granting procedure. Thus, whether or not a method was a diagnostic method should depend neither on the participation of a medical or veterinary practitioner, through being present or bearing the responsibility, nor on the fact that all method steps could also, or only, be practised by medical or non-medical support staff, the patient himself or herself or an automated system (see also G 1/07, OJ 2011, 134). Moreover, no distinction is to be made in this context between essential method steps having diagnostic character and non-essential method steps lacking it.

Quick Navigation