|Is this still the same apple?|
The disclaimer case G 1/03 seems to allow exceptions to Article 123(2) that 'Gold-standard' case G 2/10 does not allow. This board does not like it one bit:
"If one takes a bite out of an apple, what remains is recognisably no longer the same apple as the original one. Even though it is still an apple, the apple with the bite taken out of it cannot be regarded as explicitly or implicitly, but directly and unambiguously, "disclosed" in the original apple." (Reasons 8.1)
Claim 1 in this case includes two disclaimers to restore novelty against an accidental anticipation. This would be allowed under G 1/03. Is it also allowed under the more recent G 2/10? We will soon have a new enlarged board decision on disclaimers, joining the ranks of G 1/03 and G 2/10, because the following questions have been referred:
1. Is the standard referred to in G 2/10 for the allowability of disclosed disclaimers under Article 123(2) EPC, i.e. whether the skilled person would, using common general knowledge, regard the subject-matter remaining in the claim after the introduction of the disclaimer as explicitly or implicitly, but directly and unambiguously, disclosed in the application as filed, also to be applied to claims containing undisclosed disclaimers?
2. If the answer to the first question is yes, is G 1/03 set aside as regards the exceptions relating to undisclosed disclaimers defined in its answer 2.1?
3. If the answer to the second question is no, i.e. if the exceptions relating to undisclosed disclaimers defined in answer 2.1 of G 1/03 apply in addition to the standard referred to in G 2/10, may this standard be modified in view of these exceptions?