Board of Appeal of the European Patent Office decides on exemption from patentability because of therapeutic treatment

In a decision of December 8, 2016, (T 2420/13) the Board of Appeal had to deal with the interpretation of Article 53 (c) EPC which provides an exception to patentability concerning methods for the therapeutic treatment of the human body. The examining division refused to grant a patent, claim 1 of which started with the wording: “use of an eyeglass lens for correcting the ametropia of a wearer of glasses …”. The Board of Appeal, however, gave the order to the Examining Division to grant the patent by essentially saying that the eyeglass-lens does, in fact, have a positive impact on the ametropia of the wearer of glasses, as long as the glasses are being worn. This, however, did not mean that the claimed use had any impact on the body of the glasses-wearer, or that the body underwent a therapeutic treatment in any way. The Board of Appeal concluded that there was no therapeutic effect on the body per se. Consequently, the exemption from patentability excluding therapeutic treatments was not applicable.