4.4. Surgical methods

G 1/07 (OJ 2011, 134) marked an important turning point in the boards' case law on the exclusion of surgical methods from patentability. The Enlarged Board rejected the practice followed by the EPO thus far of broadly construing interventions of a surgical nature, such as in decisions T 182/90 and T 35/99, namely that all methods involving irreversible damage to or destruction of living cells or tissues of the living body were regarded as non-insignificant interventions and thus as surgical treatments, irrespective of the underlying mechanism of the intervention (e.g. mechanical, electrical, thermal, chemical). However, the Enlarged Board did not redefine the term "treatment by surgery", but indicated the direction in which it expected future practice and case law to develop. According to G 1/07, the required new direction is that the exclusion from patentability should not be applied to methods in respect of which the interests of public health, of protection of patients and as a counterpart to that of the freedom of the medical profession to apply the treatment of choice to their patients does not call for their exclusion from patentability.