4.3.2 Treatment by surgery not limited to surgery for a therapeutic purpose

In G 1/07 (OJ 2011, 134) the Enlarged Board of Appeal concluded that neither the legal history nor the object and purpose of the exclusions from patentability in Art. 53(c) EPC would justify a limitation of the term "treatment by surgery" to curative surgery (overruling T 383/03). Such a limitation would be contrary to the ordinary understanding of the word "surgery" as referring to the nature of the treatment rather than its purpose, and contrary to the fact that Art. 53(c) EPC defines three separate alternative exclusions thereby suggesting that these are not merely identical in scope. The Enlarged Board of Appeal observed in G 1/07 that the comparison between T 383/03 and T 1172/03 showed how inconsistent the decisions to be made could become if the term "treatment by surgery" was seen as limited to therapeutic surgery only.

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