Furthermore the board accepted in case T 1120/05
- for the sake of argument only - that the skilled person would look closely at the features relating to the animal passage. The question arose whether the skilled person would clearly, unmistakably and fully derive from the drawings that this animal passage had a further feature besides those explicitly stated in the application, i.e. whether the skilled person would positively realise that this animal passage did have some negative features as well. Were the board to accept that this were the case, then, as a matter of logic, the board would have to establish that the skilled person would, inevitably, realise the presence of further negative features, and potentially a large number thereof. Choosing arbitrarily one of these was not permitted, because the skilled person not only had to realise the possible negative features, but because they were derived from the drawings, he also had to establish which one of the features was essential to the invention and which ones were not. The board found that in the absence of a teaching from the description, the skilled person would be unable to establish the essential nature of a single negative feature, seen against a background of a multitude of potentially essential features, even if this selected single negative feature in the drawings could be recognised by the skilled person in the drawings. It was mentioned that the case law also confirms that negative features cannot be deduced from a schematic drawing only. More generally, in the context of Art. 123(2) EPC
the original drawings cannot be considered as a reservoir of features on which the applicant or a patent proprietor can draw when amending the claims. Decision T 169/83
required that "the structure and function" of the negative feature should be clearly, unmistakably and fully derivable for the skilled person from the drawings. This was not the case here. Furthermore the drawings related to a specific embodiment. The disputed negative feature "the entrance device forms a passage leading from the receiving station to the separation device but not to the milking station" was not directly and unambiguously derivable from this specific embodiment. Therefore, this specific embodiment shown in the drawings could not serve as a basis for the desired amendment. A further passage referred to by the respondent/patent proprietor defined the result to be achieved without disclosing either explicitly or implicitly this negative feature. This negative feature therefore added subject-matter extending beyond the content of the application as filed. Moreover, the board did not consider this undisclosed negative feature as being an allowable disclaimer within the meaning of decision G 1/03
, because the anticipation necessitating the amendment could not be considered as accidental.