3. Relationship between Article 123(2) and Article 123(3) EPC
This chapter concerns the "inescapable trap" of Art. 123(2) EPC in combination with Art. 123(3) EPC when the applicant inadmissibly adds a limiting feature to the claim. A similar trap may exist in the situation in which there is no violation of Art. 123(2) EPC but a lack of novelty due to loss of priority, see T 1983/14 summarised in chapter II.E.2.4.1 above. For the situation in which an unclear feature (Art. 84 EPC) is deleted from the claim and the argument that this also might lead to an "inescapable trap", see T 81/13 summarised in chapter II.E.1.4.7 above.
- T 1473/19
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).