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Case Law of the Boards of Appeal

 
 
2.1. Methods applied in the private and personal sphere

In T 74/93 (OJ 1995, 712) the application was refused by the examining division because claim 5, which was directed to the use of a contraceptive composition (e.g. a cream) for applying to the cervix of a female capable of conception, was not susceptible of industrial application as required by Art. 57 EPC 1973 in so far as the compound was to be applied to the cervix of a human female. The appellant had argued essentially that many inventions in the field of daily needs were used privately and their patentability should not be restricted.

The board noted that since "industry" in the field of industrial property was widely understood in its broadest sense (Art. 1(3) Paris Convention), such a liberal interpretation could also apply to Art. 57 EPC 1973. However, the board stated that in determining the borderline between industrial activities - in which the effects of patents had to be respected - and private and personal activities, which should not be adversely affected by the exercise of these rights, the board took into consideration the fact that Art. 57 EPC 1973 might be regarded as an expression of the general idea that any natural person had the right to have his or her privacy respected. The core of this right was not to be taken away from anybody. Therefore the fact that for some women contraception was connected with professional activities did not give an act, which was in essence private and personal, an industrial character. The board noted that this did not apply to contraception in general, but to the specific type of application of a composition as claimed in claim 5.

The board was unable to ascertain any field of industrial application for the direct use defined in claim 5, for which the requirement of Art. 57 EPC 1973 had to be met. The question as to whether it would be sufficient for an industrial application to be expected in future could be left unanswered. Even if the board were to accept the appellant's position in this respect, it would not be sufficient simply to make an unsubstantiated allegation to this effect. Without any specific indication the board was not in a position to accept that the requirement set out in Art. 57 EPC 1973 had been fulfilled.