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Case Law of the Boards of Appeal

Exceptions to reformatio in peius to be construed narrowly 

The respondent/patent proprietor in T 1194/06 admitted that a limitation according to the first route mentioned in the decision G 1/99 (OJ 2001,381) (see point 3.1.h)) was possible, but argued that this would result in a substantial restriction of the scope of the claims. The board was aware of the fact that the respondent would lose part of the protection afforded by the patent as maintained by the Opposition Division. It was, however, clear from G 1/99 that the principle of reformatio in peius had to be respected by the boards of appeal and that an exception to this principle should be construed narrowly. There was no reason to assume that the Enlarged Board of Appeal in G 1/99 considered even a substantial limitation of the scope of protection unacceptable. Nor did G 1/99 distinguish between different "types" of unallowable amendment. The board could thus see no reason to assume that an amendment concerning an unallowable disclaimer should be treated in any way differently than other unallowable amendments, even if the question of what was considered to be an unallowable disclaimer was clarified after the decision G 1/99.