Medical methods, risks to public health and exclusion from patentability

On 15 February 2010 the Enlarged Board of Appeal (EBA) of the European Patent Office (EPO) released an important decision regarding the exclusion from patentability of certain surgical methods. The EBA held that the presence health risks is material when verifying whether invasive surgical methods should be excluded from patentability, regardless of whether they have no curative purposes or effects. The lesson we can drawn from this decision is that risk-related factors are paramount when it comes to deciding whether medical methods are to be excluded from patentability. These factors are amongst those socio-ethical and public health related considerations which must be taken into account when dealing with the inventions in question.