1.1.4
Interpretation of the content of the application as filed 

The board in T 1018/02 stated that although a claim was not to be interpreted in a way which was illogical or did not make sense, the description could not be used to give a different meaning to a claim feature which in itself imparted a clear, credible technical teaching to the skilled reader. That also applied if the feature had not initially been disclosed in the form appearing in the claim (see also - all citing this decision - T 396/01; T 1195/01; T 1172/06; T 1202/07; T 369/10).

In T 54/82 (OJ 1983, 446) the board held that an objection under Art. 123(2) EPC 1973 did not necessarily arise when an amendment was proposed which involved combining separate features of the original subject-matter of an application. When considering whether different parts of the description in an application could properly be read together, the state of the art might also be taken into account .

In T 676/90 the board considered that the content of an application was defined not only by features mentioned or shown therein but also by their relationship to each other.

The board in T 2619/11 took the view that the focus of the first-instance decision was disproportionately directed to the structure of the claims as filed to the detriment of what was really disclosed to the skilled person by the documents as filed. The application was directed to a technical audience rather that to a philologist or logician, for which audience an attempt to derive information from the structure of dependent claims would lead to an artificial result. T 1363/12 considered that T 2619/11 did not lay down a new test (namely, of what was "really disclosed" to the skilled person) different from the "gold standard" (see in this chapter II.E.1.2.1 below) (see also T 938/11).

In T 23/02 the board said that although the claims as originally filed contained no reference to a method of measurement for the average particle diameter, that did not mean that any method could be used to determine that parameter. If anything, the claims raised doubts as to how the average particle diameter had to be determined, in particular because the skilled person would be aware of the fact that the method of measurement was of a decisive nature in particle size analysis. Therefore the skilled person would use the description and drawings when deciding how the average particle diameter was to be measured, and would come to the conclusion that when properly interpreted in the light of the original description, the claims as originally filed already contained restrictions as to the method of measurement for the average particle diameter of the various particles. Furthermore, the method of measurement for the average particle diameter did provide a technical contribution because it affected the actual value of that parameter. (For the case law on the necessity to include the measuring method of a parameter in the claim, see Chapter II.C.5.6.8 "Measuring methods".)

In T 241/13 the board held that the description did not give a precise definition of the meaning of the expression "minimum intensity level"; the patentee's interpretation of this expression was not clearly excluded. However, that such an ambiguous expression as filed might be interpreted in a particular way was not sufficient to ensure the compliance of an amendment, based on that interpretation, with Article 100(c) EPC which required a direct and unambiguous disclosure in the application as filed. In the present case, no direct and unambiguous disclosure could be found for the patentee's interpretation.

Quick Navigation