In case at problem the aim of the creation a€“ particularly increasing the selectivity to TCS a€“ is just accomplished by incorporating chosen levels of chromium to silicon thereby this particular feature had not been “closely connected with additional traits of employed sample and relates directly and unambiguously with the much more general framework” as needed in T . The present decision was also consistent with T . It accompanied your selecting associated with value 550 ppm through the functioning sample 3 is therefore simply acceptable in the case at concern, utilizing the result the specifications of Art. 123(2) EPC are achieved.
1.3 Technical sum a€“ connection or deletion of an attribute
In T the panel emphasised the criterion where an amendment should be directly and unambiguously derivable, making use of typical basic facts, and seen fairly and in accordance with the go out of processing, from total associated with application as filed, continues to be a pre-requisite for judging any modification with respect to the requirement of ways. 123(2) EPC. Ergo, the “relevance”, therefore, regarding the technical data is not worth addressing for choosing the challenge of ways. 123(2) EPC. In the event at concern it can in addition not be accepted by panel that whenever a talented person used his typical basic information, however subsequently get to the combination of features in declare 11 of auxiliary demand 2.
Absolutely nothing have been submitted by the appellant (proprietor) to aid this argument, nor had been these information derivable from the application as submitted. The appellant’s (manager’s) debate that a talented individual would understand what elements happened to be technically strongly related to the invention whenever including specific further architectural services in to the state got entirely subjective.
They hence used your introduction into claim 11 of the very first and next functions lead to the competent people are presented with a unique blend of services (i.e. new technical facts) which he will never derive straight and unambiguously, utilizing common basic knowledge, through the application as filed. State 11 thus contravened ways. 123(2) EPC and reliable request 2 is for that reason not allowable.
The Enlarged Board in G 2/10 (OJ EPO 2012, 376) responded the concerns labeled they by interlocutory , 256) below:
1a. an amendment to a declare by introduction of a disclaimer disclaiming from this subject-matter revealed during the software as recorded infringes ways. 123(2) EPC if subject-matter remaining within the claim after the introduction of disclaimer isn’t, whether explicitly or implicitly, right and unambiguously disclosed to the skilled people making use of usual basic facts, within the application as filed.
1b. identifying whether this is the case calls for a technical examination with the as a whole technical situation associated with the specific circumstances under consideration https://www.datingmentor.org/badoo-vs-tinder, considering the type and level for the disclosure in the program as recorded, the type and extent of the disclaimed subject-matter and its particular union using the subject-matter staying from inside the state following modification.
Situation T connected with an undisclosed disclaimer. Choice grams 2/10 had been consequently, prima-facie, perhaps not interested in similar circumstance, so it had been interrogate by the board whether that choice is appropriate anyway toward case before it.
It determined, after step-by-step thought, the examination of grams 2/10 (see grams 2/10, role 1a from the Order, points 4.5.1 and 4.5.2 of the Reasons) additionally applies to an amendment involving an undisclosed disclaimer by way of which a claim happens to be made latest over a European patent software in accordance with artwork. 54(3) EPC. The study of the admissibility for the modification for compliance with ways. 123(2) EPC must certanly be produced individually the disclaimer per se and for the subject-matter continuing to be during the claim (see point 4. reason).