Zusammenfassung von Rule 043(1) EPC für die Entscheidung T1471/24 vom 13.04.2026

In T 1471/24 the appeal lay from the decision of the examining division refusing the European patent application. The examining division had found that D1 represented the closest prior art to the claimed invention and that the subject-matter of claim 1 was both novel and involved an inventive step over the cited art. Nonetheless, the requirements of R. 43(1) EPC were not fulfilled since claim 1 was not drafted in the two-part form, despite this being appropriate. The board concurred with the examining division. It recalled that the purpose of the two-part form of claim is to allow the skilled person to see clearly which features necessary for the definition of the claimed subject-matter are, in combination, part of the prior art. The board noted that it is established practice before examining divisions not to insist on the two-part form if it is sufficiently clear from the indication of prior art made in the description which features of the claim under examination are known therefrom (see Guidelines F-IV, 2.3.2). However, this proviso regarding the features known from the prior art had not been satisfied in the present application. D1 was indeed acknowledged on page 1 of the description, but this acknowledgement failed to identify which specific features of claim 1 were known from D1. Fundamentally, therefore, in view of the two-part form not having been used in the independent claim, the requirement for the content of the description to include an indication of which features of claim 1 were known from the prior art was not fulfilled. The board further clarified that the present case was different from T 181/95 and T 723/93, to which the appellant had referred. In the present case, claim 1 could reasonably be formulated in the two-part form with features known from D1 placed in the preamble, features not known therefrom being placed in the characterising portion; such formulation was indeed expedient. The appellant had further argued that the text proposed by the examining division to draft claim 1 in the two-part form was incorrect insofar as D1 disclosed a set of various flat mirrors rather than, as proposed by the examining division for inclusion in the preamble of claim 1, merely a set of various mirrors. The board noted that this argument was based on a misunderstanding. The preamble of a claim drafted in the two-part form should include those features of the claim known in combination from the prior art (R. 43(1)(a) EPC). In the present case, a set of various mirrors was indeed known from D1, albeit in D1 the various mirrors of this set were flat. That the mirrors of D1 were flat was however irrelevant; D1 without doubt disclosed a set of various mirrors, such that this feature could be included in the preamble of a two-part form. According to the board, the examining division's proposal as to how claim 1 could be drafted in the two-part form seemed wholly reasonable and in line with section F-IV, 2.3 of the Guidelines. Likewise, the board disagreed with the appellant's contention that drafting the claim in the two-part form made it unclear and lacking in conciseness. None of the appellant's further arguments convinced the board that the examining division was wrong to insist on claim 1 being drafted in the two-part form. Hence, the board concluded that the appellant's sole request was not allowable and dismissed the appeal.