Patents for a medical apparatus or for medical methods?

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Patents for a medical apparatus or for medical methods?

Josef Bille

When Josef Bille won the European Inventor of the Year Award in 2012, it was for inventing a device that revolutionised certain kinds of eye surgery. His invention received a patent from the European Patent Office, despite the fact that medical methods that can be directed to surgery, therapy or diagnosis are not patentable at the European Patent Office. In fact they are explicity excluded from patentability under Article 53 of the European Patent Convention.

The reason for excluding medical methods from patents is the notion that doctors and vets need to be free to use their skills and knowledge of the best available medical treatments for their patients. They should not have to worry that what they are doing might be covered by a patent. The exclusion of medical methods from patents thus has very good reasons. On the other hand, it nevertheless leaves room for innovations to be rewarded with a patent under certain conditions. Here it is important to note that even if a medical invention based on a method cannot be patented, generally the medical apparatus, product or device that is used to carry out the method can be protected by a patent. One example of this is Gavriel Iddan's patent for his device - a pill-sized camera for wireless capsule endoscopy. He was nominated for a European Inventor of the Year Award in 2011.

Gavriel Iddan

For some inventions in medical technology, however, it is not easy to determine whether they encompass a medical method in the first place and it may also not be possible to draft a patent application on a device without having to relate to the method as such. This is for example the case for imaging methods used during surgery.

Thus whether a specific medical method is excluded from patentability under the European Patent Convention depends on the technical details and has to be decided on a case-by-case basis. Patent attorneys can provide help and guidance in this complex area.

The rapid pace of developments in medical technology over the last decade has led to a high number of patent filings in this field and a number of important decisions from the EPO's boards of appeal. Patent attorneys rely on these when formulating the advice they give1

In conclusion, a medical apparatus, product or device can be patented if it is new and inventive, it is medical methods that must meet additional criteria to be patentable. If you are thinking about patenting such a medical method, be careful and consult a patent attorney specialised in your technical area.

1 This interpretation of the legal provisions of the EPC with regard to medical methods is set up by the decisions of the enlarged board of appeal, especially G5/83 (second medical use), G1/03 (disclaimer), G1/04 (diagnostic method), G1/07 (surgery) and G2/08 (second medical use) their teachings are incorporated in the Guidelines.

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