BOARDS OF APPEAL
Information from the Enlarged Board of Appeal
Communication from the Enlarged Board of Appeal concerning case G 1/07
In accordance with Article 112(1)(a) EPC, the Technical Board of Appeal 3.4.01 has referred the following points of law to the Enlarged Board of Appeal with interlocutory decision of 20.10.06 in case T 992/03:
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?
The text of the referral in the English language is available on the Website of the European Patent Office under http://www.epo.org/patents/appeals/pending.html.
The Enlarged Board of Appeal considering the referral will be composed as follows:
P. Messerli (Chairman), B. Günzel, U. Kinkeldey, S. Perryman, A. Pézard, A. Nuss, J.-P. Seitz.
It is expected that third parties will wish to use the opportunity to file written statements in accordance with Article 11b of the Rules of Procedure of the Enlarged Board of Appeal (OJ EPO 2003, 59). To ensure that any such statements can be given due consideration without holding up the proceedings more than necessary, they should be filed by the end of October 2007 at the Registry of the Enlarged Board of Appeal, quoting case number G 1/07.