tag:blogger.com,1999:blog-8990057754240336385.post3431286514473086508..comments2024-02-27T09:18:36.160+01:00Comments on DeltaPatents Case Law blog: T 475/12 - Medical examination may be a treatment DeltaPatentshttp://www.blogger.com/profile/07830354704918972593noreply@blogger.comBlogger1125tag:blogger.com,1999:blog-8990057754240336385.post-26002767412602529702016-02-19T18:55:07.440+01:002016-02-19T18:55:07.440+01:00According to the applicant, the claimed method acc...According to the applicant, the claimed method according to all requests was restricted to being a method of examination, and a method of examination is not a method of treatment. This might be true on the face of it, but the method comprised as an essential step the administration of a laxative. And this is undoubtedly a therapeutic step. Whether a patient takes a laxative to obviate constipation or to allow coloscopy, has in any case a therapeutic purpose. <br /><br />The decision is interesting in that the BA considered that administrating a laxative is a therapeutic step which led to the method not being allowable under Art 53, c). The therapeutic step could not be distinguished from the non-therapeutic aspects, in this case the imaging aspects. This is in line with old decisions of the BA in which the fact that a therapeutic step could not be distinguished from other non-therapeutic steps rendered the method as a whole to fall under the prohibition of Art 53, c). E.g. T 116/85, T 780/89 or T 438/91.<br /><br />A similar situation to the present one, therapeutic method of using a device, is to be found in T 1592/11, Auxiliary request XIII, Point 6 of the reasons, in which a method for administering a medicament with a specific device was considered as a therapeutic method as a whole, and hence not allowable under Art 53, c). <br /><br />Although a disclaimer was in principle possible under G 1/03, it is not possible to disclaim what is inherent in the method. There was no other application of the method disclosed than in the human body. Visualising the inside of piping might also need the injection of a cleaning product, so that it can be properly visualised. <br /><br />A similar situation is to be found in T 1592/11, Auxiliary request XIIIi, Point 7 of the reasons, in which the disclaimer stated that the medicament was not administered to the human or animal body. As by essence a medicament is administered to the human or animal body, the BA held this disclaimer to be unclear, like in the present decision.<br /><br />Last but not least, without the laxative, i.e. just swallowing the video pill, it is clear that the BA would have deemed the method to be surgical in the meaning of G 1/07. See the annex to the summons, last ยง of Point 1. The BA did not have to decide on this point, as the laxative offered a much more easy way to deal with the situation. <br />Anonymousnoreply@blogger.com