The reason why „Swiss type claims“ qualify as representing an „industrial“ activity outside the scope of the exclusion from patentability under Article 52(4) EPC is simply the fact that the mere manufacturing of a product, irrespective of whether that product is (also) a „medicament“ because of its capacity to produce certain effects on or in the human or animal body when administered to it, does not necessitate or comprise any action on an individual human or animal body and, therefore, does not constitute a treatment of such body by surgery or therapy. Such treatment would, by definition, require that the product be actually used on an individual human or animal body for bringing about a certain effect on that body; but this is clearly a further and quite different activity of a therapeutical nature because it is directed to the maintenance or restoration of health.¹⁾

The difference between the two is also exhibited in real life, where the manufacturing and distribution of medicaments is a matter of industry and commerce which is performed by persons who need not and normally do not have a medical qualification, whereas the exercise of therapeutical activities including those involving the treatment by medicaments is reserved for medical practitioners or other persons having a medical knowledge.²⁾

It is the intention of Article 52(4) EPC to free from restraint non-commercial and non-industrial medical and veterinay activities (see e.g. G 05/83, cited above, point 22 of the reasons), and said provision, in respect of the exclusion from patentability of methods for treatment of the human or animal body, in no way differentiates between therapy and surgery - for good reasons, in that both serve the same purpose, namely maintaining or restoring the health of the body, on which they are performed, and very often a successful treatment requires the combined use of methods of both kinds. The criteria for deciding whether a certain format of claims is per se allowable in view of Article 52(4) EPC or not, must be the same for both surgical and therapeutical methods. It is thus not surprising that the jurisprudence regarding „treatment by surgery“ as excluded from patentability pursuant to Article 52(4) EPC relies on whether what is claimed comprises or implies a (physical) intervention on a human or animal body³⁾, the presence of one such „surgical“ step being sufficient for rendering a claim unallowable ⁴⁾.⁵⁾