Medical Patent Law – The Challenges of Medical Treatment
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Medical Patent Law – The Challenges of Medical Treatment

Eddy D. Ventose

This book provides a detailed and comparative examination of medical patent law and the issues at the heart of the medical treatment exclusion for therapeutic treatments, surgical treatments and diagnostic methods.
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Chapter 5: Surgical Methods

Eddy D. Ventose


A INTRODUCTION Article 53(c) of the European Patent Convention (EPC) excludes, inter alia, ‘methods of treatment of the human and animal body by surgery’ from patent protection.1 This exclusion, more so than any of the other methods of medical treatment exclusions, arguably, cuts right at the heart of why the exclusion exists in the first place. The Technical Boards of Appeal (TBAs) have stated that generally the exclusion exists to free from restraint the activities of physicians (and, of course, veterinary practitioners) by patent monopolies when they treat their patients.2 If one accepts this, then, the case is a fortiori for excluding methods of treatment by surgery from patent protection, because it is difficult to conceive of a surgical treatment that does not actively require the presence and, of course, intimate involvement of a surgeon (or surgeons) in the surgical procedure.3 1 See generally, D. Thomas, ‘Patentability Problems in Medical Technology’ (2003) 34 IIC 847 and R. Moufang, ‘Methods of Medical Treatment under Patent Law’ (1993) 24 IIC 18. See also, A. Odell-West, ‘Protecting Surgeons and their Art. Methods for Treatment of the Human Body by Surgery under Article 52(4) EPC’ [2008] EIPR 102. The ideas in this chapter have been derived, in part, from the following: E. Ventose, ‘Exclusion of methods of treatment of the human or animal body by surgery from patent protection’ (2007) JIPLP 574; ‘Patent Protection for Surgical Methods Under the European Patent Convention’ (2008) 39 IIC 58; ‘Disclaiming Methods of Medical Treatment...

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