T 0992/03 (Treatment by surgery/MEDI-PHYSICS) of 20.10.2006
- European Case Law Identifier
- ECLI:EP:BA:2006:T099203.20061020
- Date of decision
- 20 October 2006
- Case number
- T 0992/03
- Petition for review of
- -
- Application number
- 99918429.4
- IPC class
- G01R 33/28
- Language of proceedings
- English
- Distribution
- Distributed to board chairmen and members (B)
- Download
- Decision in English
- Other decisions for this case
- T 0992/03 2010-11-04
- Abstracts for this decision
- -
- Application title
- MR methods for imaging pulmonary and cardiac vasculature and evaluation blood flow using dissolved polarized **(129)Xe
- Applicant name
- Medi-Physics, Inc.
- Opponent name
- -
- Board
- 3.4.01
- Headnote
The following questions are referred to the Enlarged Board of Appeal:
I. Is a claimed imaging method for a diagnostic purpose (examination phase within the meaning given in G 1/04), which comprises or encompasses a step consisting in a physical intervention practised on the human or animal body (in the present case, an injection of a contrast agent into the heart), to be excluded from patent protection as a "method for treatment of the human or animal body by surgery" pursuant to Article 52(4) EPC if such step does not per se aim at maintaining life and health?
II. If the answer to question 1 is in the affirmative, could the exclusion from patent protection be avoided by amending the wording of the claim so as to omit the step at issue, or disclaim it, or let the claim encompass it without being limited to it?
III. Is a claimed imaging method for a diagnostic purpose (examination phase within the meaning given in G 1/04) to be considered as being a constitutive step of a "treatment of the human or animal body by surgery" pursuant to Article 52(4) EPC if the data obtained by the method immediately allow a surgeon to decide on the course of action to be taken during a surgical intervention?
- Relevant legal provisions
- European Patent Convention Art 112(1)(a) 1973European Patent Convention Art 52(1) 1973European Patent Convention Art 52(4) 1973
- Keywords
- Physical intervention on the body intended for data collection - method for data collection in connection with treatment by surgery - exclusion from patent protection under Article 52(4) EPC - referral to the Enlarged Board
- Catchword
- -
ORDER
For these reasons it is decided that:
The following questions are referred to the Enlarged Board of Appeal:
1. Is a claimed imaging method for a diagnostic purpose (examination phase within the meaning given in G 1/04), which comprises or encompasses a step consisting in a physical intervention practised on the human or animal body (in the present case, an injection of a contrast agent into the heart), to be excluded from patent protection as a "method for treatment of the human or animal body by surgery" pursuant to Article 52(4) EPC if such step does not per se aim at maintaining life and health?
2. If the answer to question 1 is in the affirmative, could the exclusion from patent protection be avoided by amending the wording of the claim so as to omit the step at issue, or disclaim it, or let the claim encompass it without being limited to it?
3. Is a claimed imaging method for a diagnostic purpose (examination phase within the meaning given in G 1/04) to be considered as being a constitutive step of a "treatment of the human or animal body by surgery" pursuant to Article 52(4) EPC if the data obtained by the method immediately allow a surgeon to decide on the course of action to be taken during a surgical intervention?