Zusammenfassung von EPC2000 Art 083 für die Entscheidung T0500/20 vom 18.01.2023

In T 500/20 the invention concerned a wind turbine aimed at damping or eliminating undesirable edgewise oscillations of the rotor blades that might appear in an idling power producing situation. The control of the wind turbine altered the nacelle yaw angle if it detected the presence of blade edgewise oscillations. The appellant (opponent) held that the invention was not sufficiently disclosed. The board considered the arguments put forward by the appellant were without merit, for example as to the alleged contradiction in the claim features. The board also stressed that as variously stated in case law, isolated cases of non-working or not ideally working embodiments were of no import for the issue of sufficiency in the light of the large number of conceivable and realisable alternatives indicated in the description (G 1/03, point 2.5.2 of the Reasons; T 857/16). Moreover, the board added that the general argument (made in this case and unfortunately more widely in mechanics), that the invention would not be sufficiently disclosed across the entire breadth of the claim misapplied an approach developed mainly in the field of chemistry for inventions where a central aspect of the claimed invention was a range of compositions or of parameter values. There it was important that an effect associated in the patent with the range was plausible or plausibly demonstrated across the whole breadth of the claimed range. Otherwise the claimed invention would be insufficiently disclosed, because the effect was not plausible across the whole breadth of the range. The board stated that in claimed inventions that did not involve a range of parameter values or compositions, basing an argument of insufficiency on this approach was inappropriate and could be rejected offhand for that reason. This was especially so where, as in the present case, an invention was directed at a broadly defined concept expressed in terms of generic structural or functional features of an apparatus or of a method. There it normally sufficed to provide a single detailed example or embodiment to illustrate how this concept could be put into practice in such a way that the underlying principles could be understood by the relevant skilled person who could reproduce the claimed invention using their common general knowledge without undue burden. In its Catchword the board said that: "in claimed inventions that do not involve a range of parameter values or compositions but are directed at a concept expressed in terms of generic structural or functional features of an apparatus or of a method, it is not enough to demonstrate insufficiency to conceive of an example that falls within the terms of the claim that does not work because it does not achieve the claimed effect fully or at all so that therefore the invention would not be sufficiently disclosed across the entire breadth of the claim". The board found that such an example did not prove that the claimed concept did not work; rather it reflected the limitations that were inherent in any technological endeavour and which may provide the scope for future (inventive) development. To successively argue insufficiency in a case such as this, a very high burden of proof applied: the party must demonstrate through cogent argument based on the underlying principles, if necessary supported by evidence, that the claimed concept did not work, because it did not achieve the desired effect in any measure or indeed was counter to the laws of nature. Or they must demonstrate that the disclosure lacked information on an important aspect of the claimed invention, without which the skilled person could not realise the claimed invention without undue burden. The appellant failed to present any such arguments.