T 2136/19 - Computer-implemented, so no medical method

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from Just Patent Law Blog https://justpatentlaw.blogspot.com/
T 2136/19 - Computer-implemented, so no medical method
https://justpatentlaw.blogspot.com/2022/10/t-213619-computer-implemented-so-no.html

Key points

• In T 0944/15 of 2021, Board 3.4.01 found a computer-implemented method to be  an unallowable medical method under Article 53(c) EPC.
• The Board: " Claim 1 of the main request is directed to a data processing method "to be executed by a computer". All the method steps recited in claim 1 are explicitly defined as being carried out at or by a digital processor of a computer. These steps are limited to receiving some data at the processor (for example, receiving image data such as data defining an x-ray image) and to determining, by the processor, some data on the basis of other data (for example, calculating directional distances on the basis of position data)." 
• " The Board acknowledges that the three-dimensional position data may well be acquired by palpating the patient's anatomy, thus by a step of a surgical nature; however, by virtue of the amendment above, the step of acquiring the position data itself is not part of the claimed method." 
• " claim 1 does not recite any method step defining or encompassing a physical activity or action that constitutes a method step for treatment of a human or animal body by surgery or therapy (G 1/07, points 3.2.5 and 4.1 of the Reasons). The same applies to the dependent claims. The claimed method is strictly limited to a purely "passive" data processing method which is carried out entirely and exclusively within a computer without causing any effect on the patient's body as a result." 
• " It is irrelevant that the claimed method may be performed after or even iteratively during a surgical intervention on the body, as described in the description. In any event, there would be no functional link between the claimed method and any effects of a surgical or therapeutic nature that would occur during this intervention. Therefore, in the absence of such a functional link, the claimed method as such does not qualify as a method for treatment of the human or animal body within the meaning of Article 53(c) EPC (with regard to the requirement of a "functional link", see G 1/07, point 4.3.2 of the Reasons)." 
• " It follows that the subject-matter of claims 1-10 of the main request does not fall under the exception to patentability of Article 53(c) EPC. The same applies to the subject-matter of independent claim 11, which relates to a computer program directed to the method of claim 1, to a program storage medium on which this program is stored and to a computer running or configured with this program." 
• The application has the title: "METHOD FOR ASSISTING THE POSITIONING OF A MEDICAL STRUCTURE ON THE BASIS OF TWO-DIMENSIONAL IMAGE DATA"
  
• To cite the Board in T 944/15: " in the light of the disclosure of the invention, the skilled person cannot conceive of the invention without the steps of initiating the monitoring [of the patient during radiation therapy] and using the result [in the therapy, e.g. stopping the radiation exposure], which create a functional link to the method of treatment.”

EPO 

The link to the decision is provided after the jump, as well as (an extract of) the text of the decision.

https://justpatentlaw.blogspot.com/2022/10/t-213619-computer-implemented-so-no.html