Résumé de EPC2000 Art 069 pour la décision T0450/20 du 09.03.2023

In T 450/20 the board followed the approach taken in T 1473/19, according to which the principles of claim interpretation as set out in Art. 69 EPC and Art. 1 of the Protocol on the Interpretation of this provision are to be applied in proceedings before the EPO. In the present case the understanding of the term "permanently attached" in claim 1 was relevant for assessing novelty in opposition appeal proceedings. The board stated that according to Art. 69(1), first sentence, EPC, only the claims determined the extent of protection. The description and the drawings had no such function, and must only be used to interpret the claims. This meant that the description and the drawings could only be used for interpreting features which were already present in the claims, but not for adding further - positive or negative - claim features or for replacing existing claim features by others. Claim 1 itself neither defined nor specified the term "permanently attached" further. The description of the patent did not provide a definition of this term either. The board confirmed that patent claims must be interpreted through the eyes of the person skilled in the art and this included taking account of the skilled person's common general knowledge. The prior-art documents invoked by the respondent (patent proprietor) were, however, not suitable evidence for proving the skilled person's understanding of the term "permanently attached" according to common general knowledge. In the board's opinion, the intended use of the claimed apparatus according to the patent was the appropriate criterion for determining the required duration or durability of the attachment. Hence, it understood that a "permanently attached" tapering portion did not exclude that the same tapering portion could be released from the push or guide wire. The respondent disagreed with this understanding, arguing that the description defined "permanent" as the opposite of "releasable". The respondent referred, among other things, to a passage of the description stating that figures 19a and 19b - which depicted a releasable device - showed "two variations of a separating arrangement by which the distal segment 1 according to an example not in accordance with the invention is detachably connected to a guide wire". The board pointed out that the exclusion of the releasable device depicted in those figures was only present in the description, but not in the claims. Assigning to the term "permanently attached" in claim 1 the meaning - on account of the description - that it excluded any releasable device as depicted in such figures would go beyond the mere interpretation of this claim feature in light of the description. It would amount to adding a further limitation to the claim which was only present in the description - and this would not be in line with the principle of primacy of the claims (see T 1473/19). The board further pointed out that, unlike the description of the patent, the application as filed was not referred to in Art. 69(1), second sentence, EPC as part of what must be taken into account when interpreting a patent (T 1473/19). The application as filed often differed from the patent as granted, both regarding the claimed invention and the contents of the description, and it usually could not, for this reason alone, provide guidance for interpreting the claims of the patent as granted. In view of this, the board did not consider the incidental statement in the application as filed, according to which the attachment "may be permanent or a releasable mechanism", to be a sufficient reason to interpret claim 1 as granted such that it excluded an attachment involving a releasable mechanism. The board concurred with the statement in T 1473/19 that claim interpretation was, overall, a question of law which must, as such, ultimately be answered by the deciding body, and not by linguistic or technical experts. This being so, a board of appeal was not limited to the claim interpretations advanced by the parties but may also adopt a claim interpretation of its own. Relying on documentary evidence was not a precondition for the adoption of a certain claim interpretation by a board of appeal. In this context evidence could only be relied upon to prove facts, such as how the person skilled in the art understood a certain technical term in a certain prior- art document at a certain point in time, but not to ultimately ascertain whether a certain claim interpretation was correct or not. See also T 1494/21 issued by the same board on the same date as T 450/20 (joint hearing).