6.3.3 Interpretation of ambiguous terms or confirmation of the text of a claim

Many decisions which use the description and drawings to interpret the claims concern the interpretation of relative, ambiguous or unclear terms or cite the description merely to confirm the most obvious interpretation of the text of a claim (e.g. T 23/86, OJ 1987, 316; T 16/87, OJ 1992, 212; T 50/90; T 952/90; T 439/92; T 458/96; T 717/98; T 556/02; T 1089/11; T 2145/13; T 694/20).

In several decisions the boards have stated that terms used in patent documents should be given their normal meaning in the relevant art, unless the description gives them a special meaning (see e.g. T 1321/04, T 25/15, T 1844/15). According to the established case law, the patent document may be its own dictionary (see e.g. T 311/93, T 523/00, T 1192/02, T 61/03, T 1321/04, T 620/08, T 2480/11, T 1817/14; see also in this chapter II.A.6.3.5). On this basis, the board in T 500/01 held that, a claim, the wording of which is essentially identical to a claim as originally filed, can nevertheless contravene the requirements of Art. 123(2) EPC if it contains a feature whose definition has been amended in the description in a non-allowable way (see also chapter II.E.1.14.4). In T 1360/13 the board held that any change in the description or drawings may have an influence on the understanding of a claimed feature, in particular when it must be considered ambiguous in view of a piece of prior art or an allegedly infringing product, and may thus lead to a broadening of the extent of the protection conferred. Any information in the description and/or drawings of a patent directly related to a feature of a claim and potentially restricting its interpretation could not be removed from the patent without infringing Art. 123(3) EPC. An example can be seen in T 953/22 where amendments to a drawing modified the claimed subject-matter, even if the wording of the claims remained unamended. See also chapters II.E.2.4.2 and II.E.2.4.5.

According to the board in T 458/96, when the technical content of the claims and the description clearly establish how an invention operates, these features cannot be disregarded for the purposes of assessing patentability by interpreting them merely as defining an intended use.

In T 1023/02 the invention was based on the recognition that the genes for a specific viral protein (ICP34.5) expressed in infected cells determine the ability of herpes simplex viruses to destroy central nervous system tissue. The respondent argued that a post-published document revealed the existence of an ORF-P gene coincident with but anti-sense to the ICP34.5 gene. Therefore, in view of the term "only", the claim had to be interpreted as requiring that the first method step did not interfere with the expression of this ORF-P gene. The board, however, pointed out that it was apparent from the description that the patentee had not envisaged the existence of this gene. The skilled reader would therefore, in the light of the description, not interpret the subject-matter of claim 1 in the way advocated by the respondent. Accordingly post-published knowledge of further technical details and/or complications could not justify this interpretation.

In T 1409/16 the board considered that both "exclusive disjunctions" and "inclusive disjunctions" could be expressed by the "either [...] or" wording. The fact that another expression ("and/or") was used (in the sense of an inclusive "or") in another claim of the contested patent was not, as such, a compelling reason for concluding that the "either [...] or" wording used in the claim in question must have a different meaning, i.e. that it expressed an exclusive "or". There was no absolute obligation to use a fully coherent terminology for expressing given features if the latter could be expressed in different ways. The person skilled in the art reading the patent would certainly not conclude that the "either [...] or" wording of claim 1 expressed an exclusive "or", since this would mean that the exemplified (hence particularly preferred) embodiments would be excluded from the ambit of the claim. The board held that the "either [...] or" wording could only be considered as expressing an exclusive "or" in cases where the two situations referred to were, due to their very nature, mutually exclusive, i.e. incompatible with each other.