2.3.3 General claim interpretation

This section deals with general claim interpretation for the purposes of Art. 123(3) EPC. See chapter II.A.6.1. for the general principles for the interpretation of claims.

Decision T 190/99 gives guidance on how to interpret a claim as granted for the purpose of Art. 123(3) EPC. The skilled person, when considering a claim, should rule out interpretations which are illogical or which do not make technical sense. He should try, with synthetical propensity, i.e. building up rather than tearing down, to arrive at an interpretation of the claim which is technically sensible and takes into account the whole disclosure of the patent (Art. 69 EPC). The patent must be construed by a mind willing to understand, not a mind desirous of misunderstanding (this frequently cited decision was more recently referred to in the context of Art. 123(3) EPC, for example, in T 1084/10, T 1009/12, T 916/15, T 2450/22).

The approach of T 190/99 was followed in T 111/22, where the board added that the extent to which the meaning of a claimed feature may be affected by the description and/or the drawings was limited. In view of the primacy of the claims in claim interpretation, in case of a clear conflict between the claims and the description, the claims took precedence. In other words, if a person skilled in the art understood a claim in a certain manner without doubt, taking into account the rules of grammar, the ordinary meaning of the terms used and common general knowledge, this understanding would usually take precedence over an incidental and conflicting statement in the description, in particular if that statement was only made in the context of an alleged embodiment.

In T 953/22 the board was not convinced by the appellant’s counter-argument that a discrepancy between the claims and the description was not a valid reason to ignore the clear linguistic structure of a claim and to interpret it differently or to give a different meaning to a claim feature which in itself imparted a clear credible technical teaching to the skilled reader. The board explained that the description and drawings were also taken into account for the purposes of Art. 123(3) EPC if the claims were clear and unambiguous,they were not only consulted to fill gaps. Citing Art. 1 of the Protocol on the Interpretation of Art. 69 EPC and G 2/88 (point 4 of the Reasons), the board, while also recognising the primacy of the claims under Art. 69(1) EPC, explained that it would not in the case in hand go so far as to say that the disclosure of the description and the figures could not be read into the patent claim. The board also relied on G 1/93 (point 11 of the Reasons), according to which: "In principle, it does not matter whether the addition concerns the claims, the description or the drawings, since the protection conferred by the patent has to be determined by all these elements in accordance with Art. 69 EPC and the Protocol on the interpretation of this provision. However, the claims are no doubt the most important element in this respect."

In T 287/11 the question to be answered was whether the claims of the main request covered any compositions or methods which were not covered by the claims as granted. The board considered decision T 999/10, which had been cited by the appellant, where it was stated that in view of the sequential ("cascade") formulation of the claim, there was no doubt as to the "intention" of the patent proprietor that no block copolymers other than the specific SIS-type might be present in the adhesive. The approach described in T 999/10 was followed in T 262/13, T 1063/15 and T 2215/18. However, in T 287/11 the board held that the scope of protection should not be interpreted in the light of the intention of the drafter of a claim, since this was a subjective criterion, but rather on the basis of the meaning generally accepted by the person skilled in the art to the technical features defined in said claim. T 287/11 was followed in T 881/11, T 52/13, T 865/13, T 514/14, and T 664/20.

In T 2174/16 the board recalled that the principle of legal certainty for third parties was of utmost importance when determining the scope of protection conferred by the patent as granted.