3.3.2 Combination of features of granted independent and dependent "parent claims"

In T 1128/19 the examining division had refused the application on the grounds of double patenting. The refused application was a divisional of an application that had been granted. Citing G 4/19, the board concluded that the main request and auxiliary requests 1 to 3 were not allowable because they claimed the same subject-matter as claimed in the granted parent patent. According to the board, claim 1 of the main request was an explicit alternative defined in the claims of the parent patent, being a combination of claims 1 and 4 and one of the embodiments of claim 5 of the parent patent. The same conclusion applied for auxiliary request 1. Claim 1 of auxiliary request 2 was also an explicit embodiment of the granted claims, differing from claim 1 of the main request in that it incorporated the subject-matter (and wording) of granted dependent claims 1 and 2. Claim 1 of auxiliary request 3 differed from claim 1 of the parent patent in that embodiments from dependent claim 7 of the parent patent had been incorporated. See, however, T 2907/19 in this chapter II.G.3.2.2.