a) Claim cannot be left to encompass surgical step 

A claim encompassing an embodiment which is excluded from patentability under Art. 53(c) EPC cannot be left unamended (G 1/07, OJ 2011, 134; as previously held in G 1/98, OJ 2000, 111).

In G 1/07 the board also found the following: whether or not a step being or encompassing a surgical step excluded from patentability can be omitted either by using positive wording for such omission like "pre-delivered" or by simply leaving it out from the claim depends, under Art. 84 EPC, on whether the claimed invention is fully and completely defined by the features of the claim without that step. That requires an assessment of the individual case under consideration.