1. General remarks 

The subject-matter listed in Rule 39.1 PCT can be regarded as excluded from the scope of a European search under the EPC too, i.e. on the basis that it is not susceptible of industrial application (Art. 57), is excluded from patentability under Art. 52(2) and Art. 52(3) in so far as the European patent application relates to it as such or falls under one of the exceptions to patentability in Art. 53(b) and Art. 53(c). The claims are not searched in so far as they relate to such subject-matter (for the procedure for limiting the search under Rule 63, see B‑VIII, 3.1 to B-VIII, 3.4). For the specific case of compositions for use in methods of treatment of the human or animal body by surgery or therapy, or diagnostic methods practised on the human or animal body, see B‑VIII, 2.1 below.

The examining division is responsible for taking a final decision on whether the subject-matter is patentable, but the search division will also form a view on this for the purpose of drafting the search opinion (if applicable ‒ see B‑XI, 7) and also in considering whether or not it needs to limit the search and apply the procedure under Rule 63(1) (see B‑VIII, 3.1 to B-VIII, 3.4). This means that it too has to consider the patentability requirements other than novelty and inventive step (see G‑II and G‑III).

It may be that potentially non-patentable subject-matter is found in only some of the claims or only part of a claim. This will then be indicated in the invitation under Rule 63(1) and in any subsequent partial search report or declaration replacing the search report under Rule 63(2).