Zusammenfassung von EPC2000 Art 069 für die Entscheidung T1473/19 vom 30.09.2022

In T 1473/19 the parties presented two possible interpretations for a feature in claim 1 of the granted patent. The interpretation of such feature was relevant for assessing compliance with Art. 123(2) and (3) EPC. Although the tests to be carried out under these provisions were different, a patent claim had to be interpreted in a uniform and consistent manner. The board noted that according to established case law, patent claims must be interpreted through the eyes of the person skilled in the art, taking into account the whole disclosure of the patent. There was, however, a significant body of case law according to which the description and the drawings should only be used to interpret ambiguous features. There were also different views in the case law on the extent to which Art. 69 EPC and the Protocol on the Interpretation of Art. 69 EPC should be applied when interpreting patent claims in proceedings before the EPO. In the present decision the board held that Art. 69 EPC and its Protocol were the only provisions of the EPC containing rules for the interpretation of patent claims. Art. 84 EPC, first sentence, did not contain any such rules. The board acknowledged a difference between the subject-matter of a patent claim, which was assessed under Art. 54(2), 56, 83 and 123(2) EPC, and its extent of protection, which was assessed under Art. 123(3) EPC and in national infringement proceedings. However, it did not consider this difference a convincing reason not to apply Art. 69 EPC and the Protocol when determining the claimed subject-matter in proceedings before the EPO. The board explained that there was a close link between the claimed subject-matter and the extent of protection. The extent of protection of a patent claim could be understood as the (infinite) set of embodiments which infringe that claim. This set could conceptually be divided into two distinct subsets. Although not identical to the claimed subject-matter, the first subset of the extent of protection was directly defined thereby and formed by embodiments which infringe the claim by realising the claimed features. The second subset was formed by embodiments which infringe the claim by equivalent means. When assessing whether an embodiment falls under the first subset, it is assessed whether that embodiment can be subsumed under the claimed features. To this end, the claimed features must be interpreted - and the claimed subject-matter thereby determined - in accordance with the rule on how "to interpret the claims" given in Art. 69(1) EPC in conjunction with Art. 1 of the Protocol. Such an interpretation of the claimed features for the purposes of establishing the first part of a patent claim's extent of protection was not different from interpreting these features when determining the claimed subject-matter for the purposes of assessing compliance with Art. 54, 56, 83 and 123(2) EPC. Assessing whether an embodiment falls under the second subset, i.e. equivalents under Art. 69(1) EPC in conjunction with Art. 2 of the Protocol, was a second step in the determination of the extent of protection which followed claim interpretation. As the "invention" in Art. 54, 56 and 83 EPC (see T 92/21) and, with regard to claim amendments, also the "subject-matter" under Art. 123(2) EPC (see G 2/10) referred to the claimed subject-matter only, equivalents were not to be taken into account when assessing compliance with these provisions. The board concluded that Art. 69 EPC in conjunction with Art. 1 of the Protocol could and should be relied on when interpreting claims and determining the claimed subject-matter in proceedings before the EPO, including for the purpose of assessing compliance with Art. 123(2) EPC. In addition, the board pointed out that although Art. 69(1), second sentence, EPC generally required that account be taken of the description and the drawings when interpreting a claim, the primacy of the claims according to Art. 69(1), first sentence, EPC limited the extent to which the meaning of a certain claim feature may be affected by the description and the drawings. The established case law that limiting features which were only present in the description but not in the claim could not be read into a patent claim was thus fully compatible with relying on Art. 69 EPC in conjunction with Art. 1 of the Protocol as a legal basis for determining a patent claim's subject-matteR. The primacy of the claims also limited the extent to which the description could serve as a dictionary for the terms used in the claims. The board further clarified that claim interpretation was overall a question of law which must as such ultimately be answered by the deciding body, and not by linguistic or technical experts. It did, however, involve the appraisal of linguistic and technical facts which may be supported by evidence submitted by the parties.