Patentability Of Diagnostic Methods In Europe

Like the USPTO, the European Patent Office (EPO) considers that the discovery of a natural phenomenon is not patent eligible.  However, unlike the USPTO, the EPO takes the view that a patentable invention can derive from a practical use of that discovery (EPO Guidelines for Examination G-II, 3.1), such as its use in a method of diagnosis.  For example, the discovery of a naturally-occurring correlation between a biomarker and a disease can be put to a practical use in the form of a method for diagnosing the disease.  A claim directed to a method of diagnosing the disease involving detecting the presence or amount of that biomarker may therefore be patentable at the EPO, even if the underlying naturally-occurring correlation is not patentable.