In the case at problem the purpose of the creation a€“ namely enhancing the selectivity to TCS a€“ ended up being just achieved by incorporating selected quantities of chromium to silicon and thus this particular aspect wasn’t “closely about additional features associated with the working sample and applies immediately and unambiguously for the more basic context” as required in T . The existing choice has also been in accordance with T . It used that choosing associated with the importance 550 ppm from employed instance 3 got thus plainly acceptable in the case at concern, using consequence that criteria of ways. 123(2) EPC happened to be fulfilled.
1.3 Technical contribution a€“ connection or deletion of a characteristic
In T the panel emphasised that the traditional where a modification ought to be directly and unambiguously derivable, making use of common basic wisdom, and viewed objectively and relative to the time of processing, through the total associated with software as filed, remains a pre-requisite for judging any modification with respect to the element ways. 123(2) EPC. Thus, the “relevance”, therefore, associated with the technical information is perhaps not worth focusing on for picking the matter of Art. 123(2) EPC. In the event at problems it might furthermore not accepted because of the board that whenever an experienced people applied their common general insights, he’d subsequently get to the blend of characteristics in claim 11 of auxiliary demand 2.
Nothing were submitted from the appellant (manager) to support this argument, nor was actually these info derivable from the program as registered. The appellant’s (proprietor’s) argument that an experienced people would understand what items were officially relevant to the creation when adding certain further structural attributes in to the claim was actually entirely subjective.
It hence accompanied the introduction into declare 11 of both first and 2nd services contributed to the skilled individual becoming given a mixture off attributes (i.e. newer technical facts) that he would not obtain straight and unambiguously, utilizing typical basic skills, from the software as recorded. Claim 11 therefore contravened artwork. 123(2) EPC and reliable demand 2 was consequently perhaps not permitted.
1.4 Disclaimers
The Enlarged Board in grams 2/10 (OJ EPO 2012, 376) replied the inquiries labeled they by interlocutory , 256) below:
1a. a modification to a state by introduction of a disclaimer disclaiming from it subject-matter disclosed when you look at the program as recorded infringes ways. 123(2) EPC if the subject-matter leftover from inside the declare following introduction associated with the disclaimer isn’t, whether clearly or implicitly, right and unambiguously revealed toward competent people making use of common general facts, during the program as registered “>
.
1b. identifying whether this is the case requires a technical evaluation associated with general technical situations of this specific circumstances into consideration, considering the type and degree of the disclosure inside the program as submitted, the type and level in the disclaimed subject-matter and its own relationship with all the subject-matter remaining from inside the state following amendment.
Case T pertaining to an undisclosed disclaimer. Decision G 2/10 is therefore, prima-facie, perhaps not worried about alike condition, so it was actually questioned by the panel whether that decision is appropriate whatsoever towards situation earlier.
They concluded, after step-by-step thinking, that the test of grams 2/10 (discover grams 2/10, part 1a of the Order, tips 4.5.1 and 4.5.2 of the Reasons) also relates to an amendment regarding an undisclosed disclaimer in the shape of which a claim has become made brand new over a European patent application per ways. 54(3) EPC. The study of the admissibility regarding the modification for compliance with artwork. 123(2) EPC ought to be produced separately when it comes to disclaimer per se and also for the subject-matter leftover for the declare (discover point 4. reason).
