T 944/15 - Computer program excluded as therapeutic method (Art. 53(c) EPC)

T 944/15 (Monitoring patient position / Brainlab) of 3.11.2020 is a remarkable decision, as it applies the exclusion from patentability for therapeutic methods (Art. 53(c) EPC) to computer programs. Should this approach be followed by other decisions, this would have significant impact on the patenting of computer-implemented inventions.

The appeal in this case is against the decision of the examining division refusing EP appl. 10711384.7. Claim 1 of the Main Request then on file related to a method for controlling a process of monitoring the position of a part of a patient's body during radiation therapy.  The method claim was not allowed under Art. 53(c), because - although it did not contain any features explicitly defining steps of therapeutic nature - it was regarded "indissociable linked" to a method of therapy.  The patent was revoked. The appeal was directed against this decision to revoke.

In appeal, the applicant pursued the following claim 1 of the Main Request:

"A data processing method for controlling a process of monitoring the position of at least a part of a patient's body during a radiation treatment by means of a computer, the data processing method running on the computer and comprising the following steps:

a) providing energy data to be ready for use by the data processing method, the energy data describing an energy value which is dependent on the radiation energy which has been applied to the patient's body; and

b) determining, by the computer, control data in accordance with the energy data, wherein the control data are to be issued by the computer to a monitoring device and are designed to control the time at which monitoring is performed in accordance with the energy value;

wherein the radiation energy is the radiation energy which has been applied to at least a part of the patient's body since a previous monitoring process; and

wherein threshold data are provided to be ready for use by the data processing method, the threshold data describing a threshold value, and the control data include a control statement for initiating the monitoring process when the energy value described by the energy data reaches the threshold value."

Claim 1 of the Fourth Auxiliary Request related a corresponding computer program:

"A program which, when running on a computer or when loaded into a computer, causes the computer to perform the following method:

... [method as defined in claim 1 of the Main Request].

The Board acknowledged the claims were restricted to a method implemented on a computer, or a computer program, respectively, but they considered:

"However, there is a distinction to be made between what the invention for which a patent shall be granted or shall not be granted is, as in Articles 52 and 53 EPC, and the claimed scope of protection." (point 16 of the reasons)

With reference to G 1/07, r. 4.3.2 and T 1631/17, they concluded that the invention may be different from what is defined in the claim, and exclusion or non-exclusion depends on the "teaching" of the application rather than on its claims. If the teaching requires features beyond those claimed, then these features must also be considered when assessing what the invention is, and whether the invention is excluded from patentability under Art. 53(c) EPC (r. 20).

In the underlying case, according to the Board, such steps of therapeutic nature were necessary to perform the invention. The steps of therapeutic nature were thus regarded present in the claims and the claims was refused under Art. 53(c) for including such steps having therapeutic character.

The exclusion of Art. 53(c) EPC, which expressly refers to "methods for treatment of the human or animal body by [...] therapy" was hence applied to a computer program.