e) The apparatus claim is not a disguised method claim

In T 1798/08, although all claims were directed to a visual prosthesis, i.e. an apparatus, they were objected to by the opponent under Art. 53(c) EPC as relating to a surgical method. The features "suitable to be located on the body of the user outside a wall of the sclera and attached to the sclera" and "suitable to be located implanted in the eye behind the iris", the opponent argued, related to a method for treatment of the human or animal body by surgery and thus transformed the claim into a "disguised" method claim, even though it was notionally directed to a device.

The board dismissed this objection. It observed that Art. 53(c), second sentence, EPC specified that the provision did not apply to products. The claim category "products" included apparatus. Accordingly, the provisions of Art. 53(c) EPC did not normally apply to apparatus claims. The fact that some features of the claimed apparatus were functionally defined in relation to the body of the patient did not, in itself, transform the apparatus claim into a method claim (T 712/93, T 1695/07; see also T 1407/08).