G 0002/88 (Friction reducing additive) vom 11.12.1989

ORDER

For these reasons, it is decided that:

The questions of law which were referred to the Enlarged Board of Appeal are answered as follows: (i) A change of category of granted claims in opposition proceedings is not open to objection under Article 123(3) EPC, if it does not result in extension of the protection conferred by the claims as a whole, when they are interpreted in accordance with Article 69 EPC and its Protocol. In this context, the national laws of the Contracting States relating to infringement should not be considered. (ii) An amendment of granted claims directed to "a compound" and to "a composition including such compound", so that the amended claims are directed to "the use of that compound in a composition" for a particular purpose, is not open to objection under Article 123(3) EPC. (iii) A claim to the use of a known compound for a particular purpose, which is based on a technical effect which is described in the patent, should be interpreted as including that technical effect as a functional technical feature, and is accordingly not open to objection under Article 54(1) EPC provided that such technical feature has not previously been made available to the public.