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Guidelines for Examination


2.1 Methods for treatment of the human or animal body by surgery or therapy and diagnostic methods practised on the human or animal body

Even if a claim is drafted as a method of medical treatment (see G‑II, 4.2) and is for this reason not directed to patentable subject-matter, a meaningful search may be possible if the determining technical feature is the effect of the substance, which can be searched, and as such the procedure under Rule 63 (see B‑VIII, 3.1 to 3.4) would not be necessary. For example, such claims may be worded as follows:

"A method of treating dementia by administering a compound of formula X to a patient", or

"A method of diagnosis of disease Y practised on the human/animal body, comprising steps A, B and C"

These method claims are excluded from patentability under Art. 53(c). However, in most cases it is possible for the applicant to reformulate them into an allowable form during the examination procedure (see G‑II, 4.2). Consequently, such claims are searched since they are usually characterised by the effect of substance X or by one or more of steps A, B and C which are not directly practised on the human or animal body or are characterised by the use of reagents rather than the act of therapy or diagnosis on the human/animal body.

If, however, specific method features are present (e.g. a combination of pharmaceutical with physical treatment), a meaningful search may not be possible. In cases of doubt the Search Division should issue an invitation under Rule 63(1) (see B‑VIII, 3.1). However, regardless of whether such claims are searched or not, the applicant’s attention should be drawn in the search opinion (if applicable, see B‑XI, 7) to the fact that such subject-matter is excluded from patentability (see B‑XI, 3).