In T 116/85 (OJ 1989, 13) the board held that a claimed method was excluded from patentability, if it rendered the therapeutic treatment of animals necessary, even though the therapeutic treatment of animals was commonly an aspect of agriculture, and agricultural methods were in general potentially patentable subject-matter. Here, however, the board did not consider it possible as a matter of law to draw a distinction between such a method as carried out by a farmer and the same method when carried out by a veterinarian, and to say that the method, when carried out by a farmer, was an industrial activity and, when carried out by a veterinarian, was a therapeutic treatment and thus not patentable.
In T 290/86 (OJ 1992, 414) the board held that the disclosed method of eliminating plaque was not considered allowable because it inevitably had the therapeutic effect of preventing caries and periodontal disease. The board took the view that whether or not a claimed invention was excluded from patentability under Art. 52(4) EPC 1973 depended in particular on the wording of the claim in question. If the claimed invention was not directed solely to a cosmetic effect, but was also necessarily defining a treatment of the human body by therapy as well, such a claim was excluded from patentability (distinguishing T 144/83, OJ 1986, 301). The board held that if the claimed use of a chemical product inevitably always had a therapeutic effect as well as a cosmetic effect the invention as claimed necessarily defined a treatment of the human body (see also T 475/12).
In T 780/89 (OJ 1993, 440) the claim in question related to a method of general immunostimulation for animals which led, inter alia, to an increase in meat production. The board regarded the effect of increasing meat production as a consequence of the improvement in the animals' health. Moreover, the general stimulation of the immune system was integrally linked to the specific prophylactic function of safeguarding against particular infections. The secondary effect of a therapeutic treatment did not render it patentable.
In T 438/91 the patentee contended that the main purpose of the claimed process was to increase the weight of the animals which effect was separable from the effect of prevention or cure of scours. This latter was merely a beneficial side effect. The board found that, in the light of the patent disclosure, the two effects were linked by the single action of feeding the animals, and that the intention was to obtain both effects at the same time in animals suffering from scours (treatment by therapy) and to prevent the latter complaint in those animals which did not already have it (treatment by prophylaxis).
In T 1077/93 the board held that a composition intended to protect the human epidermis against ultraviolet radiation and notably to reduce the intensity of erythema, recognised as the most spectacular form of damage to the skin by sunlight, and of skin-level cellular changes such as the formation of degenerated and necrotised keratinocytes, generally known by the term "sunburn cells (SBC)", was excluded from patentability. Citing the point, already explored in T 820/92 (OJ 1995, 113), that the exclusion of therapeutic methods from patentability could not be avoided by a purely formal rewording of the claim to qualify the purpose of the process, in its indivisible entirety, as non-therapeutic, the board found that, since at least part of the protective effect did not derive from a simple filtering at the level of the skin surface, but rather from an interaction with the cellular mechanisms in the epidermis, the process had a genuine therapeutic effect.
T 1635/09 (OJ 2011, 542) related to a method for oral contraception whereby the pathological side-effects were prevented or reduced. The board held that the prevention of side-effects – which was affirmed in claim 1 by the indication of the concentrations of active substance – was inseparably associated with the per se non-therapeutic contraceptive process. In such a case too, the exclusion from patentability under Art. 53(c) EPC could not be avoided even by limiting the claim to a "non-therapeutic use".
In T 158/13 it was not possible to distinguish between a therapeutic or non-therapeutic use of the stimulative perfume composition, since the way of administering the composition was the same for a therapeutic and a non-therapeutic use. Sleepiness or inactivity in daily life may not only be a physiological condition, but may also arise from a pathological condition. Without a clear and unambiguous distinction between a physiological and a pathological nature of a person's mental condition, a clear distinction between therapeutic and non-therapeutic use is also impossible.