Zusammenfassung von Article 088 EPC für die Entscheidung T2565/22 vom 27.05.2025

In T 2565/22 the patent concerned a system for replacing a deficient native heart valve. The proprietor submitted in the written procedure that for each feature of claim 1 a basis could be found in the priority application D34. In its communication the board expressed the preliminary view that only a partial priority was validly claimed. At the oral proceedings, the proprietor did not provide any further argument but merely referred to its written submission in this respect. The board explained that, compared with D34, granted claim 1 had been broadened by deleting the feature "adapted to be deployed by exerting substantially radial forces from within by means of a deployment device". Claim 1 could be regarded as a generic OR-claim in the sense of G 1/15. The two alternatives comprised by the claim were: (a) a device comprising a support frame "adapted to be deployed by exerting substantially radial forces from within by means of a deployment device to a deployed state", such as a balloon-expandable stent; and (b) a device comprising a support frame which is not adapted in this way, i.e. non-balloon-expandable or self-expandable. Contrary to the proprietor's submission, D34 did not disclose the mechanism by which the frame expands in a generic way. Even though the expansion mechanism was not specified each time the frame was mentioned, D34 was directed to devices adapted to be deployed by exerting substantially radial forces from within by means of a deployment device. Unlike D35, D34 did not disclose any self-expandable frames or deployment methods that did not involve deployment means such as a balloon catheter. The fact that nitinol was disclosed as a material for the frame in D34 did not imply that its shape memory properties were used to provide a self-expandable frame, i.e. a stent made of nitinol was not necessarily self-expanding even though this material had been used for this purpose in several prior art documents. Therefore, D34 did not disclose the combination of features of granted claim 1 without the feature omitted by granted claim 1. The board was thus of the opinion that only part (a) above enjoyed priority. Accordingly, D1 was prior art under Art. 54(2) EPC for part (b) and could be considered in deciding whether there had been an inventive step.