4.4.3 Towards a new concept of "treatment by surgery"

In G 1/07 the Enlarged Board of Appeal disagreed with the EPO's practice of broadly interpreting the surgical character of interventions.

A narrower understanding of "treatment by surgery" was required. Any definition of the term "treatment by surgery" must cover the kind of interventions which represent the core of the medical profession's activities, i.e. the kind of interventions for which their members are specifically trained and for which they assume particular responsibility. Such a narrower understanding rules out uncritical methods involving only a minor invention and no substantial health risks.

It is for the departments of first instance and the boards to define the boundaries of a more narrowly construed concept of "treatment by surgery", based on the technical reality of the individual case under consideration.

The required medical expertise and the health risk involved may not be the only criteria which may be used to determine that a claimed method actually is a "treatment by surgery" within the meaning of Art. 53(c) EPC. It appears that what is to be understood by "surgery" in the medical sense is to a large extent a matter of convention. Thus, in order to be surgical, it is not necessary that the intervention be invasive or that tissues be penetrated (T 5/04). The scope of what is surgery may change with time and with new technical developments emerging, as was already acknowledged in decision T 182/90.

In G 1/07, with regard to the facts of the case, the Enlarged Board decided that a claimed imaging method, in which, when carried out, maintaining the life and health of the subject is important and which comprises or encompasses an invasive step representing a substantial physical intervention on the body which requires professional medical expertise to be carried out and which entails a substantial health risk even when carried out with the required professional care and expertise, is excluded from patentability as a method for treatment of the human or animal body by surgery pursuant to Art. 53(c) EPC.