Zusammenfassung von Article 123(2) EPC für die Entscheidung T0241/25 vom 03.03.2026

In T 241/25 the patent related to an apparatus for indicating flex of a distal end of a catheter, for example, for implanting a prosthetic aortic valve in a human heart. The board agreed with the opposition division’s conclusion that the feature of the flex activating member comprising an externally threaded portion in claim 1 of the main request extended beyond the content of the earliest application as filed. Considering the disclosure in the earliest application as filed, the board explained that, for the skilled person, it was the externally threaded surface portion of the rotatable member including the internally threaded surface portion, and not any externally threaded surface of the flex activating member, that had to cooperate with the flex indicating member in order to indicate flex. In other words, the earliest application as filed inextricably linked the externally threaded portion of the rotatable member with other claimed features. Not claiming this portion of the rotatable member amounted to a non-allowable intermediate generalisation. The opponent also argued that claiming a pull wire in claim 1 of the main request was an unallowable intermediate generalisation because an adjustment knob and a resilient steerable section of the claimed elongated shaft had been impermissibly omitted. The board observed that merely referring to an embodiment of the original disclosure and stating that an unallowable intermediate generalisation of this embodiment had been added was not a substantiated objection. An objection to an intermediate generalisation in a claim required (i) identifying the features which were impermissibly omitted from the claim and (ii) explaining why the omission introduced added subject-matter. According to established case law this explanation needed to show that the omitted features were inextricably linked with (some of) the claimed ones according to the original disclosure. Only in this way was it possible to (i) identify the objection and (ii) understand the reasoning supporting the objection (see CLB, 11th edn., 2025, II.E.1.9.1; as well as, for instance T 1762/21, T 824/23 and T 1888/22). The board did not find the objection convincing and it concluded that the definition of a pull wire in claim 1 of the main request did not amount to an unallowable intermediate generalisation. The board explained that the omitted features were not inextricably linked to the feature that the wire is a pull wire. Whether an adjustment knob and a resilient steerable section together with the pull wire might provide further advantages to effectively steer and then extract the catheter, as the opponent argued, was of no relevance. In addition, the opponent argued that the omission in claim 1 of the main request that the movement of the flex indicating member relative to the handle portion was to indicate an amount of flex of the distal end portion of the elongated shaft was an impermissible intermediate generalisation. The board disagreed, observing that claim 1 of the main request recited that the flex activating member caused the flex indicating member to move relative to the handle. In the claim, the fact that this movement indicated flex was implied by the definition of the flex indicating member as part of an apparatus for indicating flex. No other movement of the flex indicating member was defined. Hence, the board concluded that no intermediate generalisation was present. The opponent raised a further objection of added subject-matter against claim 3 of the main request. The board explained that claim 3 of the main request specified that "the flex activating member (154) and the flex indicating member (156) are separate members". It was common ground that the earliest application as filed did not provide a literal basis for this feature. The board observed that to assess whether the claim comprised added subject-matter, the feature had first to be interpreted in view of the patent as a whole (T 367/20, T 873/23). In view of what was already defined in claim 1, the board understood that the term "separate" in claim 3 had to mean something different from simply distinct. The technically meaningful interpretation was that, according to claim 3, the two members in question were held at a distance from one another, for example, by means of an intermediate element. With this construction, claim 3 found no basis in the earliest application as filed. In conclusion, the feature of the flex activating member comprising an externally threaded portion in claim 1 and the feature of the flex activating member and the flex indicating member being separate members in claim 3 of the main request extended beyond the content of the earliest application as filed. Hence, the ground for opposition in Art. 100(c) EPC prejudiced the maintenance of the patent on the basis of the main request.