2.2. Generalisation of a feature

The board of appeal held in its decision T 371/88 (OJ 1992, 157) that Art. 123(3) EPC 1973 was not contravened if a restrictive term in a granted claim which in its strict literal sense did not embrace an embodiment set out in the description was replaced by a less restrictive term. The restrictive term should not, however, be so clear in its technical meaning in the given context that it could be used to determine the extent of protection without interpretation by reference to the description and drawings. Moreover, it had to be quite clear from the description and drawings and also from the examination procedure up to grant that the further embodiment belonged to the invention and that it was never intended to be excluded from the protection conferred by the patent (see also T 673/89, T 738/95, T 750/02, T 749/03 above, T 433/05, T 1172/08).

In T 795/95 the board did not share the appellant's view that deleting the feature "preferably polyvinyl or polyethylene" from the preamble of granted Claim 1 extended the protection conferred. The formulation "preferably polyvinyl or polyethylene" had no bearing on the scope of protection, which was determined by the more general term "plastic" and not the specific preferred substances polyvinyl or polyethylene. Deleting a "preferred" feature did not extend the scope of protection if such feature was encompassed by an earlier and general one (in this case, "plastic") which determined the protection conferred.

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