A. Patentansprüche

Catchword:

Any unclarity that may arise from an ambiguity in an application as filed is to the detriment of a patent proprietor, who is ultimately responsible for the drafting of the application as filed and its claims. The fact that a feature in the application as filed is unclear cannot therefore justify or excuse the complete deletion of the unclear feature or its replacement by another feature if this results in an extension beyond the content of the application as filed. What prompted a patent proprietor to make a particular amendment to the claims cannot have any influence on the outcome of the assessment of the ground for opposition under Article 100(c) EPC (point 8 of the Reasons).

Catchword: 

As to claim construction, see point 2.7 of the Reasons.

Catchword:

1. The provisions in Article 84 EPC and Rules 42 and 43 EPC provide an adequate legal basis for claim interpretation when assessing patentability. In particular, the requirement that the claims shall be "supported by the description" in Article 84 EPC, 2nd sentence, indicates that the description may be relied upon as an aid or support for understanding the subject-matter of the claims. 2. However, as implicitly derivable from this provision, the support of the description for interpreting the claims should only be resorted to in the exceptional cases where the subject-matter of the invention and/or its technical context needs to be clarified, and may only be applicable when the invention in the description corresponds to the invention as claimed. 3. The support of the description should, in any case, not be used for restricting or modifying the subject-matter of the invention beyond what a person skilled in the art would understand when reading the wording of the claims within the relevant technical context.

Catchword:

1. If a request is not admitted because earlier objections are not overcome, Rule 111(2) EPC requires that these earlier objections be made explicit in the decision (see reasons 3).

2. Non-convergence of requests is, on its own, not a sufficient reason for non-admittance. It must be reasoned that and why non-convergent requests affect procedural economy in view of the particular circumstances of the case (see reasons 4).

3. The purpose of the claims to define the matter for which protection is sought (Article 84 EPC) imparts requirements on the application as a whole, in addition to the express requirements that the claims be clear, concise and supported by the description. The Board deems it to be an elementary requirement of a patent as a legal title that its extent of protection can be determined precisely. Whether this is the case for a specific patent application (or an amended patent) can only be decided with due consideration of the description. Claims and description do not precisely define the matter for which protection is sought if they contradict each other (see reasons 27 to 34).

Catchword: 

The requirement that the claims are to be supported by the description under Article 84, second sentence, EPC does not necessarily mean that all the "embodiments" of the description of a patent application have to be covered by the (independent) claims, i.e. that all the embodiments must fall within the scope of those claims (see point 6.2.2 of the Reasons).

Exergue : 

Interprétation des revendications de procédé comportant des caractéristiques de type produit (que l'on pourrait qualifier de revendications « process-by-product ») (voir le point 1.1.4 des motifs)

Catchword: 

The normal rule of claim construction of reading a feature specified in a claim in its broadest technically meaningful sense corresponds to determining the broadest scope encompassed by the subject-matter being claimed according to a technically sensible reading. In the case of a feature defined in a positive manner, which imposes the presence of a specific element, this is effectively achieved by giving to the element in question its broadest technically sensible meaning. However, for a feature defined in a negative manner, which excludes the presence of a specific element, the broadest scope of the claim corresponds to the narrowest (i.e. most limited) technically sensible definition of the element to be excluded. (Reasons, point 5.7)

Catchword: 

1.) Article 69 EPC in conjunction with Article 1 of the Protocol thereto can and should be relied on when interpreting claims and determining the claimed subject-matter in proceedings before the EPO, including for the purpose of assessing compliance with Article 123(2) EPC (Reasons 3.1-3.15).  2.) Although Article 69(1), second sentence, EPC requires that generally account be taken of the description and the drawings when interpreting a claim, the primacy of the claims according to Article 69(1), first sentence, EPC limits the extent to which the meaning of a certain claim feature may be affected by the description and the drawings (Reasons 3.16-3.16.2).  3.) Claim interpretation is overall a question of law which must as such ultimately be answered by the deciding body, and not by linguistic or technical experts. It does, however, involve the appraisal of linguistic and technical facts which may be supported by evidence submitted by the parties (Reasons 3.17).

Orientierungssatz:
Stützung der Ansprüche durch die Beschreibung, s. Punkt 3.3.5

Catchword:

Necessity to adapt the description (Reasons 3)

Catchword:
Statements in the description contradicting the plain claim wording may cast doubts as to the intended meaning of this wording. Under such circumstances an objection under Article 84 EPC has to be raised.