In the case at problem the purpose of the innovation a€“ particularly increasing the selectivity to TCS a€“ is simply achieved by the addition of chosen amounts of chromium to silicon thereby this feature wasn’t “closely pertaining to additional properties from the functioning instance and relates right and unambiguously into more common perspective” as required in T . The existing decision was also consistent with T . They implemented that the picking out on the worth 550 ppm from the operating sample 3 was consequently clearly appropriate in case at problems, with all the effect your specifications of ways. 123(2) EPC happened to be achieved.
1.3 Specialized sum a€“ extension or removal of an element
In T the board emphasised your standard wherein a modification need to be immediately and unambiguously derivable, using typical general knowledge, and viewed fairly and relative to the go out of filing, through the complete for the application as submitted, stays a pre-requisite for judging any modification with respect to the element ways. 123(2) EPC. Thus, the “relevance”, as a result, of the technical data is perhaps not worth addressing for deciding upon the matter of ways. 123(2) EPC. In the case at concern it can furthermore not accepted by board that whenever a skilled people used his usual basic knowledge, he would subsequently get to the mixture of attributes in claim 11 of auxiliary request 2.
Absolutely nothing was in fact filed by the appellant (proprietor) to compliment this argument, nor is these facts derivable from the software as filed. The appellant’s (manager’s) discussion that a skilled individual would understand what details comprise technically relevant to the invention when incorporating specific additional structural functions to the claim had been entirely subjective.
They hence accompanied that the introduction into state 11 of the first and second properties triggered the skilled people being offered another mixture off properties (i.e. brand-new technical details) that he wouldn’t normally get immediately and unambiguously, using common basic wisdom, through the application as recorded. State 11 hence contravened ways. 123(2) EPC and auxiliary request 2 was actually thus not permitted.
1.4 Disclaimers
The Enlarged panel in grams 2/10 (OJ EPO 2012, 376) answered the issues known they by interlocutory , 256) the following:
1a. a modification to a declare from the introduction of a disclaimer disclaiming from this subject-matter disclosed during the program as submitted infringes ways. 123(2) EPC if the subject-matter remaining in declare following introduction of disclaimer just isn’t, whether clearly or implicitly, straight and unambiguously revealed into the competent people using common basic understanding, in program as registered.
1b. Deciding whether or not that’s the circumstances needs a technical assessment of this as a whole technical situations of individual instance under consideration, taking into account the character and level regarding the disclosure in the application as submitted, the character and level of the disclaimed subject-matter and its commitment with the subject-matter continuing to be inside claim after the amendment.
Case T connected with an undisclosed disclaimer. Decision grams 2/10 is consequently, prima-facie, perhaps not worried about similar circumstances, so that it is interrogate by the panel whether that choice got applicable whatsoever to your instance before it.
It concluded, after detailed thought, your test of G 2/10 (read grams 2/10, role 1a associated with datingmentor.org/escort/austin/ the purchase, tips 4.5.1 and 4.5.2 reason) additionally relates to a modification including an undisclosed disclaimer by way of which a state has-been made brand-new over a European patent application based on ways. 54(3) EPC. The examination of the admissibility of the modification for conformity with ways. 123(2) EPC ought to be generated separately the disclaimer per se and also for the subject-matter continuing to be into the claim (see aim 4. of the Reasons).