1.4.1 Broadening of claim – permissible within the limits of the original disclosure

The deletion of a feature in a claim as filed may lead to a broadening of the claim. According to G 1/05 date: 2007-06-28 (OJ 2008, 271, referring to G 1/93, OJ 1994, 541), the applicant has a right to amend the claims so as to direct them to subject-matter not encompassed by the claims as filed. It is only after grant that the interests of third parties are further protected by Art. 123(3) EPC and the patentee's right to amend the claims is limited by the scope of the granted patent.

In T 133/85 (OJ 1988, 441) the board held that it was possible to broaden a claim (i.e. to extend the protection conferred by it) without contravening Art. 123(2) EPC, provided that the subject-matter which was within the claims for the first time as a result of the amendment was already disclosed within the content of the original application as filed (confirmed e.g. in T 732/00, T 273/04, T 1211/05, T 915/23).

In T 66/85 (OJ 1989, 167) it was pointed out that if a technical feature was deleted from a claim in order not to exclude from protection certain embodiments of the invention, the broadening of the claim did not contravene Art. 123(2) EPC 1973 as long as there was a basis for a claim lacking this feature in the application as originally filed (see also T 228/98).

In T 1724/08 the board held that the broadening of individual disclosed features, in particular those of an independent claim as filed, was not prohibited by Art. 76(1) EPC 1973; such amendments likewise required a direct and unambiguous disclosure in the earlier application as filed (see also T 1727/09).

The board found the word "good" in the expression "good contact" to be technically relevant in the context of T 345/24. 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 at least a contact promoting swift transfer of liquids was implied through the expression "good contact", which the word "contact" alone failed to achieve.