3.2.4 Scope of claims of granted patent fully encompassed in scope of protection of claim request

In T 2402/10 the respondent raised an objection of double patenting, since claim 1 had been amended during the opposition/appeal proceedings in such a manner that its scope fully encompassed the scope of the claims of the patent granted from the grand parent application (the parent patent). But claim 1 contained technical features not required by any claim of the parent patent. Since the parent patent and the patent in suit claimed different subject-matter, the question of double patenting could not arise. The board noted that the respondent also referred to the headnote of T 307/03, according to which a double patenting objection could also be raised where subject-matter of the granted claim was encompassed by the subject-matter of the claim later put forward. The board, however, saw this as no reason to depart from the mandatory requirement of "same subject-matter" invoked in decisions G 1/05 date: 2007-06-28 and G 1/06 and in the established case law. See also T 1155/11.