The following questions are referred to the Enlarged Board of
Appeal:
1. Is a claimed imaging method for a diagnostic purpose
(examination phase within the meaning given in G 1/04), which
comprises or encompasses a step consisting in a physical
intervention practised on the human or animal body (in the
present case, an injection of a contrast agent into the heart),
to be excluded from patent protection as a "method for treatment
of the human or animal body by surgery" pursuant to Article 52(4)
EPC if such step does not per se aim at maintaining life and
health?
2. If the answer to question 1 is in the affirmative, could the
exclusion from patent protection be avoided by amending the
wording of the claim so as to omit the step at issue, or disclaim
it, or let the claim encompass it without being limited to it?
3. Is a claimed imaging method for a diagnostic purpose
(examination phase within the meaning given in G 1/04) to be
considered as being a constitutive step of a "treatment of the
human or animal body by surgery" pursuant to Article 52(4) EPC if
the data obtained by the method immediately allow a surgeon to
decide on the course of action to be taken during a surgical
intervention?
