The case law of the European Patent Office (EPO) concerning the patentability of surgical methods has undergone a significant evolution following decision G1/07 of the EPO’s Enlarged Board of Appeal in February 2010.
Here is a summary of this development:
Prior to decision G1/07, all methods involving irreversible damage to or destruction of living cells were considered unpatentable surgical methods, irrespective of their purpose (therapeutic, aesthetic, etc.). It was therefore virtually impossible to protect methods involving the use of medical devices as soon as said devices would come into contact with the human body and alter cells.
The G1/07 decision reversed this strict interpretation and introduced criteria for determining on a case-by-case basis what constitutes a surgical method excluded from patentability. According to the G1/07 decision, a method is excluded if it includes an invasive step representing a major physical intervention on the body, requiring professional medical skills and involving a risk to health.
The Enlarged Board of Appeal considered the previous interpretation too strict and acknowledged that certain invasive techniques performed on non-vital parts of the body (such as tattoos and piercings) should not be excluded from patentability. This case law has also authorized the patentability of some minimally invasive surgical methods, or those performed in non-medical environments. As a result, methods of cosmetic treatment and certain preoperative and postoperative methods may be patentable.
In summary, the G1/07 decision introduced a more flexible interpretation of the exclusion of patentability of surgical methods, allowing the protection of some methods that are less invasive or practiced in non-medical environments.
If you have any questions, please contact Lavoix Romain Toucas and Damien Colombié.