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In a case as far back as T 165/84 it was considered that the claims lacked clarity if the exact distinctions which delimited the scope of protection could not be learnt from them.
When a claim is directed to a product characterised by parameters, those parameters must be clearly and reliably determined (see T 94/82, OJ 1984, 75; T 452/91, T 541/97, T 437/98, T 193/01). On the extent to which it must be clear from the claim itself how a parameter is to be determined, see section 1.1.2 below.
In T 412/93, however, the board observed that frequently where something had to be measured there would be a grey area where measurement error might make it difficult to determine whether a particular product fell within a claim or not. The board held that this did not justify an objection under Art. 84 EPC 1973.
In T 555/05 the board pointed out that the feature considered in T 412/93 was defined in relative terms in respect to a product of the prior art as reference. In the case at issue, however, the feature giving rise to the objection was defined in absolute terms. The board therefore decided that the claim at issue did not meet the requirements of Art. 84 EPC 1973.
When an essential ingredient comprised in a chemical composition is open to be labelled arbitrarily "active ingredient" or not depending exclusively on the mental label the user wished to apply, thereby rendering the meaning of that feature protean, then the public is left in doubt as to the distinction which compositions are covered by the claim and which are not, which is at variance with the principle of legal certainty. Because of that lack of legal certainty, the claim at issue in T 586/97 fails to meet the requirement of clarity imposed by Art. 84 EPC 1973.
In T 762/90 a lack of clarity was found in the use of a trade mark designating a whole series of products which differed from one another depending on phases in their industrial development. Moreover, the board expressed doubts about the use of such a designation, since it was uncertain whether the meaning of the trade mark would remain unaltered up to the end of the patent term (see also T 939/92). Similarly, in T 480/98 the board considered that a trade mark product referred to in the characterising portion of claim 1 did not have a clear technical meaning, in that it could refer to a plurality of products having different compositions and properties. In consequence there was a lack of clarity, and the claim was not allowable. According to the board in T 623/91 the exclusion of a composition by reference to the trade mark or trade designation would not introduce uncertainty and therefore not offend against Art. 84 EPC 1973, as changes in the range of chemical composition would not be likely without a corresponding change in the trade name or trade mark.
The preamble of claim 2 of the application in T 363/99 contained a reference to a German patent specification. The board considered this to be a violation of Art. 84, second sentence, EPC 1973 since it was impossible to establish the scope of the matter for which protection was sought without consulting the reference document mentioned. The fact that the indication of the publication number of the reference document provided the most concise definition of the matter for which protection was sought (Art. 84 EPC 1973) was irrelevant by comparison. When formulating a patent claim, the form that was objectively more precise always had to be chosen (T 68/85, OJ 1987, 228).
In T 728/98 (OJ 2001, 319) the board held that it followed from the requirement of legal certainty that a claim could not be considered clear within the meaning of Art. 84 EPC 1973 if it comprised an unclear technical feature (here “substantially pure”) for which no unequivocal generally accepted meaning existed in the relevant art. This applied all the more if the unclear feature was essential for delimiting the subject-matter claimed from the prior art. In this case the description did not give any indication as to how the term should be interpreted. Likewise in T 226/98 the board held that the feature "as a pharmaceutical product" for defining a pharmaceutical standard of purity in a claim related to a product as such (here, famotidine form "B"), rendered said claim unclear in the absence of a generally accepted quantitative definition for the purported standard of purity.
In decisions T 1129/97 (OJ 2001, 273) and T 274/98 the board emphasised that, to satisfy the clarity requirement, the group of compounds/ingredients according to the claim had to be defined in such a way that the skilled person could clearly distinguish compounds/ingredients that belonged to the claimed group from those that did not (see also T 425/98 regarding the expression "consisting of a major amount of"). In T 274/98 the board stated that in the context of a claim relating to a cosmetic or pharmaceutical composition containing fatty bodies, the term "products sensitive to oxidation" referred to products which, at ambient temperature, were degraded in the presence of oxygen. In that light the disputed term was perfectly clear. The appellant failed to supply evidence that in the given context some products would be susceptible to oxidation in some conditions and not in others. Hence there was no ambiguity, and the claim was clear.
Where a quality is expressed in a claim as being within a numerical range, the method for measuring that quality must be either general knowledge or a method for measuring it needs to be identified. However, where the claim specifies that a quality must be absent, this implies that this quality cannot be detected by the methods which are common in the art for measuring it, so that the indication of a specific method is not necessary (T 1012/98).
Complexity as such is not equivalent to a lack of clarity - clarity under Art. 84 EPC is not at stake in a case of mere complexity of a claim provided the subject-matter for which the protection is sought and the scope thereof are clear and unambiguous for a person skilled in the art, either per se or in the light of the description (see T 574/96 re Art. 84 EPC 1973). In T 1020/98 (OJ 2003, 533) the board confirmed that compliance with the clarity requirement of Art. 84 EPC 1973 was not dependent on the time required to establish whether a given compound was covered by the product claim. The clarity requirement was not a basis for objecting to the complexity of a claim. Clarity within the meaning of that article merely required the claims to define the subject-matter for which protection was sought clearly and unambiguously for the skilled person, if necessary in the light of the description.
In T 687/00 the preamble of claim 1 of the main request related inter alia to a "plastic sealing sheet with appreciably better biaxial extensibility than conventional sheet". The board held that this part-feature conveyed a mere desideratum which made no intrinsic technical contribution to the subject‑matter of the claim. Furthermore, the impugned feature described an objective to be achieved over the prior art and therefore concerned the central problem addressed by the inventor of the application at issue. A subjective problem of this kind could alter in the course of the procedure. The board emphasised that the statement of the problem belonged, as usual, in the description and not in the claim.
In T 194/99 the board stated that it was possible in a claim for a first entity to define certain characteristics of that entity as a function of characteristics of a second entity employed when using the first entity (medical laser apparatus defined as a function of absorption characteristics of a photosensitizer). As such, there was no need for the claim to be directed to the combination of the first and the second entity (T 455/92). According to the board, a prerequisite was, however, that the second entity and its relevant characteristics as such, not their exact values, were unambiguously identified in the claims.
In T 651/05 the board found that the introduction of vague terms created a lack of clarity due to different but equally valid interpretations (see also T 621/03 and T 127/04). Where, on one of several possible constructions of a vaguely formulated claim, part of the subject-matter claimed is not sufficiently described to be carried out, the claim is open to objection under Art. 100(b) EPC 1973 (T 1404/05, also reported under II.A.6.1, Art. 83 EPC and support from the description).