Zusammenfassung von Article 123(2) EPC für die Entscheidung T0981/23 vom 22.09.2025

In T 981/23 the board agreed with the opposition division that the meaning of the additional feature in claim 1 of auxiliary request 1 was ambiguous. This was because the order in which the condition ("when" clause) and the two activities (to supply power and activate) were presented in claim 1 had been reversed with respect to the original disclosure. The board explained that in the original formulation with the structure "when X, then A and B", both "A and B" were presented as the consequence of the condition being fulfilled. In the reverse order "A and B when X", especially without a comma, the question of grouping arose, i.e. whether "and" separated the two parts "A" and "B when X" (such that the condition X only applied to B) or whether the condition "when" referred to both "A and B". This applied irrespective of the fact that "configured to" was only recited once before "supply power […] and activate". In the board's view, it was a technically reasonable alternative to the original disclosure to keep the power supply to the controller unmanaged (continuous, uninterrupted) and to control only the activation of the controller (for example by an enable or wakeup signal to a pin of the microprocessor) by the power supply section according to the specified condition. Accordingly, this broader, alternative interpretation of the additional feature in claim 1 was not ruled out from a technical point of view. The board held that Art. 84 EPC required claims to be clear, and that the meaning of a claim feature should be clear for the person skilled in the art from the wording of the claim alone (G 1/04). Furthermore, the board referred to point 20 of the Reasons in G 1/24, noting that the correct response to any lack of clarity in a claim is amendment. As the additional feature in claim 1 allowed for two different interpretations which were both technically reasonable for the person skilled in the art, the board established that its meaning was not clear from the wording of the claim alone. Accordingly, the board found that claim 1 did not comply with the requirements of Art. 84 EPC. Hence, auxiliary request 1 was not allowable and there was no need to address the further objection against claim 1 under Art. 123(2) EPC. With regard to the latter, the board noted for completeness that according to the Order in G 1/24, the description and drawings are always to be consulted to interpret the claims, and not only if the person skilled in the art finds a claim to be unclear or ambiguous. The board considered this to be true not only for the question of "patentability of an invention under Articles 52 to 57" but also for the issue of Art. 123(2) EPC (T 873/23, T 2048/22). It further stated that G 1/24 otherwise confirmed most of the established case law, including the principle of the primacy of the claims (G 1/24, Order, first sentence: "the claims are the starting point and the basis"; T 1473/19), noting that the primacy of the claims prohibited a feature which was only disclosed in the description or the drawings from being read into a claim (T 1473/19). In the present case, the expression incorporated in claim 1 was worded differently from the description. In the board's view, it would be inconsistent with the principle of the primacy of the claims to automatically give the claimed expression the exact same meaning as the expression in the description despite the appellant's different choice of wording in the claim. The board explained that, following the established practice to interpret a disputed claim more broadly rather than more narrowly (T 1886/22), it would, for the purposes of assessing Art. 123(2) EPC, have interpreted the feature in question such that the "when" condition was only required for the activation. The board concluded that this would have resulted in added subject-matter.