E. Änderungen

In T 1424/23 the board explained that when assessing compliance with Art. 123(2) EPC, it has to be established whether the application has been amended in such a way that it contains subject-matter which extends beyond the content of the application as filed. Citing G 3/89, the board recalled that the content of the application as filed consists of the description, claims and drawings as filed, i.e. on the filing date. In the case in hand, the application as filed had been published during the international phase.

However, the decision under appeal discussed the amendments made to claim 1 compared to the amended claim 1 filed on entry into the European phase. The board observed that the claims filed on entry into the European phase did not correspond to those of the application as filed. It therefore established that the claims filed on entry into the European phase did not provide a basis for assessing compliance with Art. 123(2) EPC.

As it appeared that the examining division had incorrectly relied on the claims filed on entry into the European phase for its Art. 123(2) EPC assessment, the board concluded that a proper Art. 123(2) EPC assessment might not have been carried out. Consequently, it remitted the case to the examining division for further prosecution.

In T 873/23 claim 1 as granted was amended with respect to claim 1 as originally filed inter alia by Feature 1.5x, specifying that, for an electric coil cooktop and an electric glass ceramic cooktop, the control device was configured to control the power level of the cooktop "by turning the heating element continuously on and off". It was common ground that there was no literal basis for "continuously" in the context of "turning the heating element on and off" in the application as filed. However, the board observed that there were other occurrences of the term "continuously" in the description (both as filed and as granted) and in claim 1 as granted in the context of monitoring/sensing the temperature and calculating a rate of change of the sensed temperature. The parties agreed that, according to the patent, in these occurrences "continuously" meant "periodically", albeit with different time periods for monitoring and calculating.

The board agreed in principle with the "two-step approach" for the assessment of added matter set out in the Catchword of T 367/20. The patent claims first had to be interpreted in order to determine the subject-matter they contained after the amendment. They were interpreted in line with G 1/24, which states, in the context of assessing the "patentability of an invention under Articles 52 to 57", that the claims are the starting point and the basis for the assessment, and the description and drawings are always to be consulted to interpret the claims. The board considered this to be true not only for the question of "patentability of an invention under Articles 52 to 57" but also for the issue of Art. 123(2) EPC. In a second step, it had to be assessed whether the subject-matter of the amended claim contained subject-matter which extended beyond the content of the application as filed. In this regard, in accordance with G 2/10, the decisive factor was whether the skilled person was presented with new technical information after the amendment..

The board disagreed with the two interpretations of Feature 1.5x submitted by the appellant (patent proprietor). The board considered that the only convincing interpretation of the expression "by turning the heating element continuously on and off" was that of periodically turning the heating element on and off (at fixed intervals) as submitted by the respondent, which included pulse-width modulation of the heating element in accordance with a predetermined duty cycle. In reply to the appellant’s argument that this interpretation "was not in line with the disclosure in the patent", the board explained that, according to T 367/20, a claim feature had to be interpreted not in isolation but in the context of the whole document it formed part of. This was, however, to be done by taking due account of the primacy of the claims (see also T 1473/19). This was also in line with G 1/24, which states that the "claims are the starting point and the basis" (see also UPC_CoA_335/2023, second Headnote, according to which the claims were the "decisive basis").

The board observed that the application as filed disclosed embodiments in which the heating element was controlled on the basis of a duty cycle and was thus "continuously" turned on and off. However, even in the algorithm using duty cycles, different duty cycles and phases of keeping the heating element "on" for a specific period of time were employed. The heating element was thus not always "periodically" turned on and off, and the "continuity" of the duty cycle was interrupted under certain conditions. As claim 1 as granted did not include these more specific aspects of the power control for the electric glass ceramic cooktop of the application as filed, and as the application as filed did not disclose a periodicity throughout the algorithm, the amendment in Feature 1.5x was at least an unallowable intermediate generalisation of the original disclosure. Moreover, the application as originally filed did not contain a corresponding disclosure (power control algorithm based on a duty cycle) for the electric coil cooktop (Feature 1.5a). Accordingly, the combination of Feature 1.5x with Feature 1.5a extended beyond the content of the application as filed..

The maintenance of the patent as granted according to the main request was thus prejudiced by the ground of opposition under Art. 100(c) EPC. Since none of the claim requests was allowable, the appeal was dismissed.

In T 405/24 the board agreed with the opposition division and the respondents that granted claim 1 contained added subject-matter. Feature 1.7 bore no limitation in respect of the type of "filtered packets" being "routed" to the "proxy system".

The appellant argued that "routing filtered packets to a proxy system" in the context of claim 1 was to be broadly construed, i.e. it should not be narrowly interpreted as "network-layer routing" only. Rather, it should include any kind of "sending", "forwarding" or "logging". The unit "RG1" in step #19 of Fig. 3B at the very least "forwarded" to the proxy device "PD1" those packets (comprising encrypted data) which were not "dropped" but "logged". Thus, the skilled person in the field of data communications would have understood that such "forwarding" was providing a basis for the "routing" action of feature 1.7. According to the appellant, if multiple technically sensible interpretations of a certain claim feature existed, the one which was supported by the patent description should prevail.

The board was not persuaded by the appellant’s argument. First, the board considered that even if the Order of G 1/24 (which related to assessing compliance with Art. 52 to 57 EPC only) could be extrapolated to the assessment of compliance with Art. 123(2) EPC, there was no indication in G 1/24 that "consulting" or "referring to" the description and drawings could translate into adopting a claim interpretation which ensured that the disputed feature was originally disclosed and thus necessarily fulfilled Art. 123(2) EPC. Such an approach, which according to the board inherently assumed that there may be only one "correct" interpretation of a claim feature, namely the one derivable from the original description as its intended meaning, would not lead to an objective assessment of compliance with Art. 123(2) EPC. The board did not follow the approach of T 367/20 (for the event of "mutually exclusive" interpretations) nor T 2048/22 (claim ambiguities). Rather, the board relied on the body of case law which holds that all technically reasonable interpretations of a disputed claim feature are to be taken into account when assessing compliance with Art. 123(2) EPC (see e.g. T 945/20, T 470/21, T 2034/21, T 193/22).

Second, even if, for the sake of argument, the "forwarding" of logged packets (comprising encrypted data) to the proxy device "PD1" in step #19 constituted a specific instance of the more general "routing filtered packets to a proxy system", this would still fail to justify the claimed generalisation, which also encompassed, among other things, network-layer routing of filtered packets not being necessarily logged.

Thus, the board concluded that the ground for opposition under Art. 100(c) EPC in conjunction with Art. 123(2) EPC prejudiced the maintenance of the patent as granted. The same objections applied to auxiliary requests 1 to 7 and 9 to 15. Auxiliary requests 8 and 2b were not admitted into the appeal proceedings. Since there were no allowable claim requests on file, the appeal was dismissed.

In T 195/23 was an appeal against the interlocutory decision of the opposition division concerning the maintenance of the patent in amended form. The opponents disputed the decision's finding that the priority claim was valid. In particular, they challenged the validity of the priority claim for the alternative "wherein the smoke modifying additive is disposed only in said axial region of the filter material of the first filter section" in the feature directed to the location of the smoke modifying article in claim 1 of auxiliary request 3.

The board concurred with the proprietor that the drawings in the priority document were specifically intended to show the location of the smoke modifying additive. In fact, figures 1-5 of the priority document depicted various types of additive located in the central region of a filter section. For example, in figures 1 and 4, a capsule was located in an axial region of a first filter section. In figures 2 and 5, the absorbent material had an additive carrying thread disposed therein in an axial region. In figure 3, the absorbent material 47 had a plurality of microcapsules disposed therein in an axial region thereof. However, none of these passages contained a statement to the effect that the depicted smoke modifying additive was the only additive in the filter. In the board's view, these drawings therefore could only serve as a basis for a positive feature directed to the presence of such additive in a central region of the filter. Such a positive feature did not rule out the presence of some further, non-depicted additive in another region of the filter.

In contrast, the board construed the feature "only in the axial region" as a negative feature which was directed to the absence of any smoke modifying additive from other regions of the filter, e.g. its peripheral region. The board referred to established jurisprudence (see CLB, II.E.1.13.3, 10th edition) according to which, a negative feature, i.e. the absence of not depicted elements, usually cannot be derived from drawings. This was aggravated in the present case by the disclosure in the priority document, which explicitly stated that there could be additive – though at a lower concentration – in non-axial regions of the filter. In light of this explicit disclosure in the priority document, which did not contradict the drawings and the corresponding explanations to the drawings in the description, the board was not convinced by the respondent's argument that the skilled person would interpret the drawings as such, rather than entertaining the notion that they did not illustrate some smoke modifying additive. As a consequence, the board did not consider the feature directed to the smoke modifying additive being disposed only in the axial region of the first filter section to be an implicit feature of the priority document.

The board concluded that the application underlying the patent in suit was not filed in respect of the same invention for the alternative "wherein the smoke modifying additive is disposed only in said axial region of the filter material of the first filter section" of claim 1 of auxiliary request 3, and thus, the patent proprietor should not enjoy a right of priority for this alternative..

The above conclusions also applied to independent claim 1 of auxiliary requests 5 to 18, which also contained the alternative "wherein the smoke modifying additive is disposed only in said axial region of the filter material of the first filter section".

In T 1535/23 the board observed that the Court of Appeal of the Unified Patent Court ("CoA UPC") in UPC_CoA_382/2024 applied the same test as the EPO to determine whether an amendment extended beyond the content of the application as filed. This test is known as the "gold standard" (see G 2/10).

The issue at stake in both T 1535/23 and UPC_CoA_382/2024 concerned the omission of a feature from a claim in the context of added matter. In T 1535/23 claim 1 of auxiliary request 5 essentially differed from independent claim 19 of the parent application as filed in that the specific surface area contained in independent claim 19 of the parent application as filed had been omitted and instead two characteristics of a powder X-ray diffraction pattern had been added. The board explained that the parent application as filed disclosed that the said specific surface area was an essential feature of the invention. All the independent claims of the parent application as filed required the said specific surface area, either directly or by reference to another independent claim. Furthermore, in the summary of the invention, the parent application as filed referred, in a first broad aspect, to a crystalline free base of palbociclib having the said specific surface area. Therefore, it was clear to the skilled person that the passages of the parent application as filed relied on by the respondent referred to embodiments all having this specific surface area. Hence, the board observed that the parent application as filed comprised no teaching that the specific surface area referred to in independent claim 19 of the parent application as filed was not an essential feature of the invention disclosed which could be omitted to characterise Form A of the freebase of palbociclib. The board concluded that the omission of the specific surface area in claim 1 of auxiliary request 5 added subject-matter beyond the content of the parent application as filed.

In turn, in UPC_CoA_382/2024 independent claim 1 of the patent related to an on-body glucose monitoring device comprising a sensor assembly and an enclosure with an electronics assembly. The point of dispute was whether the omission of an elastomeric sealing member for sealing the coupling between the sensor assembly and the electronics assembly in the wording of this independent claim added subject-matter. The CoA UPC found that even though a need for sealing was described in the application as filed, there was no described advantage or function of the use of the specific elastomeric material now omitted from the claim, other than that it provided sealing. Therefore, the skilled person understood from the application as filed that the exact method of sealing did not contribute to, and was thus not relevant for, the technical teaching of the invention as disclosed in the application as filed. The CoA UPC concluded that the omission of the use of an elastomeric sealing member from claim 1 of the patent did therefore not extend beyond the content of the application as filed.

The board explained that its conclusion in T 1535/23 was not in contradiction with the decision of the CoA UPC in UPC_CoA_382/2024. The fact that the CoA UPC acknowledged that the feature in question could be omitted without extending beyond the content of the application as filed while the board in T 1535/23 reached the opposite conclusion was based on different factual situations rather than on a difference in legal considerations. Both the CoA UPC and the board in T 1535/23, and the EPO in general, apply the same principle (the "gold standard") in judging whether an amendment extends beyond the content of the application as filed.

In T 345/24 the board considered the omission of the qualifier "good" in feature 1.3 of the patent as granted to lack a direct and unambiguous basis in the application as filed.

The board explained that, relative to claim 1 as filed, feature 1.3 had been introduced into the claim, in which the acquisition distribution layer (ADL) was defined to be "in contact with" the body-facing side of the absorbent core. The basis for this amendment was stated by the opposition division to be paragraph [0198] of the application as filed where, however, the ADL was disclosed to be "in good contact with" the body-facing side of the absorbent core.

The board found the word "good" in the expression "good contact" to be technically relevant in the present context. For a skilled person, a good contact, at least in the technical field of absorbent articles, would imply face-to-face contact over a large area between two elements of the article. Conversely, if two elements were merely "in contact" with one another, at one extreme the expression encompassed merely single point contact over a small area. This latter condition of minimal contact between two elements would not be considered by the skilled person as embodying "good" contact between the elements. Despite the term "good" being somewhat imprecise, in the context in which it was used in the description it would be understood nonetheless to indicate a certain kind, amount and/or quality of contact. The proprietor's argument, with reference to G 1/93, that the term "good" could be omitted from claim 1 due to it lacking a technical meaning was thus not accepted by the board.

Furthermore, the board explained that the purpose of an ADL in absorbent articles was to remove liquid deposited on a topsheet and ensure its distribution within itself, but also to ensure swift transfer of the liquid to the absorbent retention part of the core of the article. In this context, a "good" contact between the ADL and the absorbent core had to be contact which efficiently promoted the transfer of liquid from the ADL to the absorbent core such as, for example, by providing a large face-to-face contact area. Consequently, at least a contact promoting swift transfer of liquids was implied through the expression "good contact", which the word "contact" alone failed to achieve.

Finally, the proprietor's argument that the ADL being positioned between the topsheet and the absorbent core as a closed, layered structure unambiguously implied that significant face-to-face contact (i.e. "good" contact) was achieved was, at least in this generality, not accepted by the board. The board agreed with the opponent that claim 1 did not exclude further layers being positioned between the ADL and the absorbent core which would allow, for example, contact of merely the peripheral edge of the ADL with the absorbent core. The board concluded that a skilled person would not equate such peripheral contact over a limited area to be "good" contact in the sense of the application as filed.

Hence, the board decided that the ground for opposition under Art. 100(c) EPC was prejudicial to the maintenance of the patent as granted.

In T 518/22 the board established that the "A3" mutant disclosed in D2 anticipated the subject-matter of claim 1 of auxiliary request 1 at least under Art. 54(3) EPC.

Claims 1 and 9 of auxiliary request 2 differed from the respective claims in auxiliary request 1 in that an undisclosed disclaimer had been introduced to exclude the A3 mutant disclosed in D2 from the subject-matter claimed.

The board explained that, according to G 1/03, an amendment to a claim by the introduction of a disclaimer may not be refused under Art. 123(2) EPC for the sole reason that neither the disclaimer nor the subject-matter excluded by it from the scope of the claim have a basis in the application as filed. G 1/03 defines the criteria when such an undisclosed disclaimer is allowable, stipulating that it can be introduced into a claim inter alia to restore novelty by delimiting a claim against the state of the art under Art. 54(3) EPC but not under Art. 54(2) EPC (except for a so-called accidental disclosure).

In order to determine whether D2 was prior art under Art. 54(2) or (3) EPC for the claimed subject-matter, the board assessed whether the subject-matter of claim 1 as a whole was entitled to claim priority from P and whether D2 was entitled to claim priority from P1.

The board found that D2's priority based on P1 was valid. Appellant I had objected to D2's formal entitlement to priority because the applicants of P1 and those of the international patent application D2 were not the same. The board explained that G 1/22 and G 2/22 established that a presumption exists that a claim to priority is valid by way of an implicit agreement on the transfer of the right to claim priority in the absence of evidence that such an agreement (implicit or explicit) did not exist. This presumption applies to any case where the subsequent applicant is not identical with the priority applicant. On account of this general teaching, the board understood that the presumption applied also to patent applications cited as prior art, as in the present case (see also T 521/18).

This presumption could be rebutted to take into account "rare exceptional cases" where the subsequent applicant could not justifiably rely on the priority (G 1/22). This, however, involved the reversal of the burden of proof, i.e. the party challenging the subsequent applicant’s priority entitlement (here appellant I) had to prove that this entitlement was missing. Merely raising speculative doubts was not sufficient. Instead, evidence was required that specific facts supported serious doubts about the subsequent applicant's entitlement to priority (G 1/22). In the absence of evidence suitable to establish that the alleged real priority right holder did not allow the subsequent applicant to rely on the priority (see also T 1975/19), appellant I's objection against D2's formal entitlement to priority from P1 was not sufficient to rebut the presumption of validity, which always existed on the date on which priority was claimed (G 1/22). Hence, D2 validly claimed priority from P1.

As regards the validity of the patent's priority claim based on P, the board established that the relevant date for the subject-matter of claim 1 in several embodiments concerning SEQ ID NOs: 5 to 8 was the filing date of the patent application, whereas several embodiments of claim 1 in relation to SEQ ID NO: 4 were entitled to claim partial priority from P (G 1/15).

Therefore, D2 was prior art under Art. 54(2) EPC for the subject-matter of claim 1 not enjoying priority, i.e. in relation to several embodiments concerning SEQ ID NOs: 5 to 8, and prior art under Art. 54(3) EPC for the subject-matter of claim 1 enjoying priority, i.e. in relation to several embodiments concerning SEQ ID NO: 4.

Since the undisclosed disclaimer added to claim 1 in auxiliary request 2 removed embodiments of D2 which belonged to the state of the art pursuant to Art. 54(2) EPC and were not an accidental disclosure, such amendment was not allowable under Art. 123(2) EPC. Auxiliary request 2 comprised added subject-matter (G 1/03 and G 1/16) and did not fulfil the requirements of Art. 123(2) EPC.

In T 2029/23 the patent concerned a method for preparing gelatin-based candy that did not require a drying step or the use of a single-use starch mould to extract moisture from the liquid composition.

The board decided to set aside the decision under appeal, in which the opposition division had concluded that claim 1 of the main request did not meet the requirements of Art. 123(2) EPC.

Claim 1 of the main request differed from claim 1 of the application as filed in that claim 1 of the main request specified that (1) the gelatin had a bloom value of 200 to 300 and (2) the liquid candy composition was allowed to set at a temperature below 10°C for 10 to 30 minutes.

Regarding the bloom value of the gelatin, the board explained that the widest range for a bloom value disclosed in the claims of the application as filed was 200 to 300 (claim 8). Adding this feature to claim 1 of the main request merely specified the gelatin to be used in the invention. Hence, this amendment was directly and unambiguously derivable from the application as filed. This was also the case for the setting temperature, for which the board found that a setting temperature below 10°C was directly and unambiguously derivable from claim 3 of the application as filed.

As regards the range of 10 to 30 minutes for the setting time, the board distinguished the case in hand from the case underlying T 1919/11, in which the competent board had decided that the amendment combining a lower limit and an upper limit from two separate sentences (or "lists") of upper and lower limits was not allowable because the disclosure in the parent application as filed did not represent a range and such a combination was arbitrary. Instead, in the case in hand, there was a single sentence, namely claim 4 of the application as filed, that contained a general range (1 hour or less) and only two preferred narrower ranges (30 minutes or less and 10 minutes or less). The lower two values of this range were used to draw up the range in claim 1 of the main request. This amendment in itself did not produce added subject-matter.

Furthermore, the board observed that the application as filed explicitly stated that for a relatively fast setting time, the temperature during setting was to be kept low. The skilled person would have readily understood that there was a correlation between the setting temperature and the setting time.

Therefore, the board established that claim 1 of the main request met the requirements of Art. 123(2) EPC.

In T 325/23 the board agreed with the appellant (patent proprietor) that in general there exists no file wrapper estoppel in proceedings under the EPC. A file wrapper estoppel is a concept in US patent law. It refers to the doctrine that the patent proprietor may be estopped from enforcing an interpretation of patent claims that is inconsistent with statements made during the patent prosecution process. This concept does not exist in the EPC. However, the fact that the appellant had argued during the prosecution of the patent application that the limitation "single row" added to claim 1 was made in order to limit the subject-matter of claim 1 against prior-art document D9 which disclosed "multiple rows", could be taken as an indication that a narrow interpretation of the term "single row" was at least not technically unreasonable. It was therefore appropriate, at a later stage of the proceedings, to follow such a narrow interpretation, which had even been adopted by the appellant during earlier proceedings. Such an interpretation did not correspond to a "file wrapper estoppel" because it did not limit the interpretation of a certain feature to what was argued by the then applicant for all future proceedings. Rather, the consideration of such events in the file history was used to determine whether an interpretation was technically reasonable or not, without excluding other interpretations.

The board did not agree with the appellant's assumption that once an interpretation of a feature was determined, it could only be assessed whether this interpretation contravened Art. 100(c) EPC. Other interpretations were, according to the appellant, no longer relevant for the assessment of the admissibility of amendments.

According to settled case law of the Boards of Appeal, all technically reasonable interpretations of an ambiguous claim have to be considered. If one of those interpretations contains matter that extends beyond the content of the application as originally filed, it has to be concluded that there is added subject-matter (CLB, 10th edn. 2022, II.E.1.3.9e)).

In the context of claim interpretation the appellant further argued that a non-specific definition in a claim should be given its broadest technically sensible meaning and referred inter alia to the chapters II.A.6.1 and I.C.4.1 of CLB, 10th edn. 2022. The board disagreed. While it is true that according to these two chapters a non-specific definition in a claim should be given its broadest technically sensible meaning, none of these citations refer to the interpretation of claims in the context of assessing the admissibility of amendments under Art. 100(c) EPC or Art. 123(2) EPC. The board therefore concluded that all technically reasonable interpretations of the disputed feature had to be taken into account for the assessment under Art. 100(c) EPC.

In the case in hand, the disputed feature was feature (h). The board assessed whether the (narrow) interpretation of feature (h), according to which "single row" meant a single connector line, was already encompassed by the content of the application as filed and it concluded that the ground for opposition pursuant to Art. 100(c) EPC prejudiced the maintenance of the patent as granted (main request). The same reasons applied to auxiliary requests IA and IB and I to XXIII.

In T 298/22 erläuterte die Kammer, dass für die Beurteilung, ob eine Änderung mit den Erfordernissen des Art. 123 (2) EPÜ in Einklang steht, der durch die ständige Rechtsprechung der Beschwerdekammern etablierte sogenannte "Goldstandard" gilt: Jede Änderung darf unabhängig vom Kontext der vorgenommenen Änderung nur im Rahmen dessen erfolgen, was die Fachperson der Gesamtheit der Unterlagen in ihrer ursprünglich eingereichten Fassung unter Heranziehung des allgemeinen Fachwissens – objektiv und bezogen auf den Anmeldetag – unmittelbar und eindeutig entnehmen kann (vgl. RBK, 10. Aufl. 2022, II.E.1.1).

Bei der Kombination der Merkmale (1.6) und (1.7b), stimmte die Kammer der Beschwerdeführerin dahingehend zu, dass das Merkmal (1.6) nur in Verbindung mit dem Ausführungsbeispiel der Figuren 1 bis 11 und somit nur im Zusammenhang mit Merkmal (1.7a) offenbart sei, aber nicht im Zusammenhang mit dem Ausführungsbeispiel der Figuren 12 bis 16 und somit im Zusammenhang mit Merkmal (1.7b). Die Kammer stellte fest, dass, bei der Prüfung nach Art. 123 (2) EPÜ, ob eine Merkmalskombination ursprünglich offenbart sei, der Goldstandard nicht erfordere, dass die Kombination der Merkmale durch den Fachverstand der Fachperson möglicherweise aus der Beschreibung ableitbar sei oder dass sich die Fachperson die beanspruchte Kombination aus möglichen Ausführungen der Offenbarung ableiten könne, sondern dass die Kombination unmittelbar und eindeutig offenbart gewesen sei. Im vorliegenden Fall lag weder eine unmittelbare noch eine eindeutige Offenbarung vor.

Hinsichtlich der Zwischenverallgemeinerung in Merkmal (1.6), erklärte die Kammer, dass in Beachtung des Goldstandards eine "Zwischenverallgemeinerung" (also eine Verallgemeinerung einer ursprünglich offenbarten besonderen Ausführungsform, wobei der Gegenstand der Verallgemeinerung zwischen dieser besonderen Ausführungsform und der ursprünglichen, allgemein gefassten Definition der Erfindung liegt) nach ständiger Rechtsprechung der Beschwerdekammern nur zu rechtfertigen sei, wenn keinerlei eindeutig erkennbare funktionale oder strukturelle Verbindung zwischen den Merkmalen der spezifischen Kombination besteht oder das herausgegriffene Merkmal nicht untrennbar mit diesen Merkmalen verknüpft ist (vgl. RBK, 10. Aufl. 2022, II.E.1.9.1; T 714/00).

Die Beschwerdegegnerin ging auf die funktionale Verknüpfung des Merkmals (1.6) mit anderen Merkmalen des ersten Ausführungsbeispiels ein. Sie argumentierte, dass die anderen in den Figuren gezeigten und in der zugehörigen Beschreibung beschriebenen Merkmale nicht in funktionalem Zusammenhang mit Merkmal (1.6) stünden. Diesbezüglich war die Kammer der Meinung, dass Figur 1 und das entsprechende Ausführungsbeispiel auf den Seiten 8 und 9 der ursprünglich eingereichten Beschreibung viele nicht-optionale Merkmale offenbart hätten, die alle im Zusammenhang mit dem Merkmal (1.6) stünden, da diese Merkmale in Summe zu dem gemäß Merkmal (1.6) zu erreichenden Resultat führten. Folglich stünden die Merkmale des in Figur 1 gezeigten Ausführungsbeispiels mit Merkmal (1.6) in funktionalem Zusammenhang und könnten von Merkmal (1.6) gemäß den durch die Rechtsprechung gestellten Anforderungen nicht getrennt werden. Somit könne Merkmal (1.6) nicht isoliert in den breiteren Zusammenhang des Gegenstandes des (ursprünglichen) Anspruchs 1 gesetzt werden (unerlaubte Zwischenverallgemeinerung).

Die Kammer kam daher zu dem Schluss, dass Anspruch 1 des Hauptantrags und der Hilfsanträge 1 bis 4 nicht die Erfordernisse des Art. 123 (2) EPÜ erfüllte.