3.1.4 Exceptions to reformatio in peius to be construed narrowly

The respondent (patent proprietor) in T 1194/06 conceded that a limitation according to the first route mentioned in the decision G 1/99 (OJ 2001,381) was possible (i.e. an amendment introducing one or more originally disclosed limiting features without putting the opponent (appellant) in a worse situation than if it had not appealed) but argued that this would result in a substantial restriction of the scope of the claims. The board was aware of the fact that the respondent would lose part of the protection afforded by the patent as maintained by the opposition division. It was, however, clear from G 1/99 that the principle of reformatio in peius had to be respected by the boards of appeal and that an exception to this principle should be construed narrowly. There was no reason to assume that the Enlarged Board of Appeal in G 1/99 considered even a substantial limitation of the scope of protection unacceptable.

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