This, however, ended up being manifestly far from the truth right here

In the case at problem the aim of the innovation a€“ namely increasing the selectivity to TCS a€“ got merely achieved by incorporating chosen quantities of chromium to silicon and thus this particular aspect wasn’t “directly connected with the other properties of the working example and relates straight and unambiguously with the more general perspective” as needed in T . The present decision was also consistent with T . They implemented that the picking out of the worth 550 ppm from the operating sample 3 was actually for that reason simply acceptable in the case at concern, using consequence the needs of artwork. 123(2) EPC comprise satisfied.

1.3 Technical sum a€“ extension or removal of a feature

In T the panel emphasised that standard wherein a modification should be straight and unambiguously derivable, utilizing usual general information, and viewed rationally and relative to the time of submitting, through the full for the application as recorded, continues to be a pre-requisite for judging any amendment according to the requirement of ways. 123(2) EPC. Thus, the “relevance”, therefore, in the technical information is maybe not worth addressing for deciding upon the condition of artwork. 123(2) EPC. In case at concern it could additionally never be accepted by board that when a talented people applied his typical general facts, he’d subsequently reach the mixture of functions in declare 11 of additional demand 2.

Little was indeed registered from the appellant (owner) to aid this debate, nor got these suggestions derivable from program as submitted Aurora escort. The appellant’s (owner’s) argument that a skilled people would realize what details had been officially strongly related the development whenever including certain further architectural attributes into the declare ended up being totally subjective.

They therefore adopted the introduction into declare 11 of both very first and 2nd functions resulted in the skilled individual are presented with a fresh mixture of qualities (i.e. brand new technical details) that he wouldn’t normally get immediately and unambiguously, using usual general facts, through the program as registered. Declare 11 hence contravened Art. 123(2) EPC and additional consult 2 was actually therefore perhaps not allowable.

1.4 Disclaimers

The Enlarged panel in G 2/10 (OJ EPO 2012, 376) answered the inquiries described they by interlocutory , 256) the following:

1a. a modification to a claim because of the introduction of a disclaimer disclaiming from this subject-matter disclosed into the application as recorded infringes artwork. 123(2) EPC if subject-matter staying inside claim after the introduction regarding the disclaimer is not, whether it is explicitly or implicitly, right and unambiguously disclosed with the competent people utilizing typical basic information, during the software as filed.

1b. identifying whether or not that is the case needs a technical examination for the general technical situation on the specific instance under consideration, taking into account the nature and level associated with the disclosure within the application as filed, the type and extent associated with disclaimed subject-matter and its particular union with all the subject-matter leftover for the state following the modification.

Situation T regarding an undisclosed disclaimer. Decision grams 2/10 got therefore, prima facie, maybe not concerned with alike situation, so it ended up being asked by the panel whether that choice had been appropriate whatsoever to the case before it.

It determined, after detail by detail reason, that the test of G 2/10 (discover grams 2/10, part 1a of this Order, points 4.5.1 and 4.5.2 reason) furthermore relates to a modification involving an undisclosed disclaimer through which a claim has been made brand-new over a European patent application relating to artwork. 54(3) EPC. The examination of the admissibility on the modification for conformity with Art. 123(2) EPC needs to be produced independently when it comes to disclaimer by itself and also for the subject-matter leftover when you look at the state (read point 4. of the Reasons).