Analysis of Patentability of Surgical Methods in European Patent System

Abstract

Surgical methods are among excluded subject matter from patentability in most countries’ patent laws. However, due to rapid advances in scientific discoveries in medical and biotechnological fields, the variety of inventions related to surgical methods are notably increasing. This has given rise to the difficulty in determining the scope of the patentable inventions, and inconsistency in European case-law. Here, one of the reasons behind such disparity in decisions is the difference in the courts’ interpretation about the Ratio Legis of excluding surgical methods. While some courts consider the nature of such methods as the reason for this exclusion, others regard their purpose in maintaining life and health of the human or animal as the reason. This Article tries to analyze the complexities of the patentability of surgical methods by examining the case-law main approaches and recent developments related to such methods.