Exclusions To Healthcare Treatment Methods Under The EPC

• Published date: 04 April 2024
• Law Firm: Inventa
• Author: Susana Rodrigues and Marisol Cardoso

It is well known that patents can be granted for inventions (products, processes or methods and practical applications or uses) that are novel, inventive, and provided with industrial applicability.

However, in Europe, as in many other jurisdictions, certain types of inventions are not considered patentable. To this end, theEuropean Patent Convention(EPC) sets forth the patentability criteria and Article 53 outlines its exceptions, that include:

(a) inventions which commercial exploitation would be contrary to 'ordre public' or morality;

(b) plant or animal varieties or essentially biological processes for the production of plants or animals; and

(c) methods for treatment of the human or animal body by surgery or therapy and diagnostic methods practised on the human or animal body.

In this article, it is our objective to better understand the exceptions under Article 53(c) EPC by analysingDecisions of a Technical Board of Appeal(T decisions).

It is also our objective to determine possible ways to avoid an exclusion objection when drafting a patent application or to overcome an unfavourable decision during patent prosecution.

Breaking down Article 53(c) EPC

The exclusion of methods of treatment from patentability is a principle based on socio-ethical and public health considerations.

The rationale behind this exclusion is to balance the interests of promoting scientific progress and innovation with the need to ensure that medical and veterinary professionals have the freedom to use their skills for the benefit of patients without being hindered by exclusive patent rights.

The medical profession is often guided by ethical principles that prioritise patient welfare and the physician's duty to provide the best available care.

When it comes to public policy, the interest in...