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Case Law of the Boards of Appeal

 
 
1.1.4 Incorrect information in divisional application but correct information derivable from earlier application

In T 1088/06 an appeal was filed against the decision of the Examining Division refusing the European patent application, which had been filed as a divisional application on the ground that the application extended beyond the content of the earlier application as filed. Both the expression "10-4 to 10-9" and the expression "104 to 109" had occurred several times in the earlier application; the divisional application referred to a range between about 104 to 109 Ohm/cm2. The Examining Division held that the correct range could not be directly and unambiguously derived from the parent application as originally disclosed. The board could not agree. If information in the earlier application was objectively recognisable by the person skilled in the art as information that was incorrect, and if the person skilled in the art would derive the correct information directly and unambiguously, using common general knowledge, and seen objectively and relative to the date of filing, from the whole of the documents of the earlier application as filed, then the correct information belonged to the content of the earlier application and might be used to decide whether a divisional application extends beyond the content of the earlier application as filed (Art. 76(1) EPC). In the case before it, the board concluded that the range mentioned in the divisional application did not introduce subject-matter extending beyond the earlier application as filed.