Résumé de EPC2000 Art 084 pour la décision T1426/21 du 27.03.2023

In T 1426/21 the board followed decision T 1444/20 finding that the "specific embodiments of the invention" drafted as claim-like clauses in the description (of the new main request), which were consistent with the claims did not render the claims unclear pursuant to Art. 84 EPC and met the requirements of R. 42 EPC. The board noted that the Guidelines 2023, Part F, Chapter IV, 4.4 indicate that "claim-like clauses must also be deleted or amended to avoid claim-like language prior to grant since they otherwise may lead to unclarity on the subject-matter for which protection is sought". The board held that in the present case the "claim-like clauses" did not render the subject-matter for which protection was sought unclear, because the text in the description was consistent, and not in contradiction, with the set of claims. Moreover, the claim-like clauses disclosed as "aspects" on pages 11 and 12 could not be mistaken for claims. It was obvious that they were part of the description and were not part of the claims defining the protection to be sought. According to the board, R. 42 EPC did not rule out claim-like clauses in the description. In the present case, the claim-like clauses could be considered as embodiments of the invention defined in terms of technical features. These claim-like clauses did not change or impair the understanding of the technical problem and the solution defined in the description. Therefore, there was no reason to require their deletion. The board concluded that the amendments to the description according to the (new) main request had removed the previous inconsistencies between the claim-like clause embodiments and the claims. The claims were thereby supported by the description pursuant to Art. 84 EPC.