T 0082/93 (Cardiac pacing) du 15.05.1995

I. Under Article 52(4) EPC, a claim is not allowable if it includes at least one feature defining a physical activity or action (e.g. a method step) which constitutes a "method for treatment of the human ... body by therapy" (following Decision T 820/92, OJ EPO 1995, 113). Whether or not the claim includes features directed to a technical operation performed on a technical object is legally irrelevant to the application of Article 52(4) EPC.

II. The proposed amendment of the claims of a patent during opposition proceedings by way of change of category from a "method of operating a device" to a "device" is in principle not allowable under Article 123(3) EPC.

III. If a patent as granted only contains claims which, on their proper interpretation, each define a method of operating a device which is in fact a "method for treatment of the human or animal body by therapy or surgery", and such patent is opposed under Article 52(4) EPC, then Articles 52(4) and 123(3) EPC may operate in combination as an inescapable trap resulting inevitably in revocation of the patent, in that:

(a) the patent cannot be maintained as granted because its claims define subject-matter which is unpatentable having regard to Article 52(4) EPC;

(b) the patent cannot be maintained in amended form with claims which only define the device itself and which no longer contain features defining a therapeutic method of operating it contrary to Article 52(4) EPC, because amendment of the claims as granted by deletion of such "method features" defining therapeutic operation of the device would be contrary to Article 123(3) EPC (Decisions T 378/86, OJ EPO 1988, 386, and T 426/89 OJ EPO 1992, 172 distinguished).