4.4.5 Avoiding the exclusion of methods of treatment by surgery from patent protection under Article 53(c) EPC
The Enlarged Board in G 1/07 went on to say that the exclusion from patentability under Art. 53(c) EPC can be avoided by disclaiming an embodiment, it being understood that in order to be patentable the claim including the disclaimer must fulfil all the requirements of the EPC and, where applicable, the requirements for a disclaimer to be allowable as defined in decisions G 1/03 (OJ 2004, 413) and G 2/03 (OJ 2004, 448) (see also G 1/16). Whether or not the wording of a claim can be amended so as to omit the surgical step without offending against the EPC must be assessed on the basis of the overall circumstances of the individual case under consideration (see T 923/08, in this chapter I.B.4.4.4 d)).