An interesting decision concerning what the skilled person would directly and unambiguously derive from the application as filed, when disputes concerning translations of terms from a non-official language arise.
In the present case, part of the objections raised by the opponent-appellant stem from an (alleged) error in the original Italian language application and a supposedly incorrect translation into English of another term in the original application.
More specifically, whereas the original application (concerning a system and apparatus for dehumidifying walls) mentioned
“spostamenti” which was subsequently translated into English as
"movements", the patentee later amended this term to
“differences” based on the corresponding Italian term
“scostamenti”, arguing that this amendment was an obvious correction within the meaning of Rule 139 EPC. The opposition division agreed.
While the Board considered it plausible, perhaps even probable, that the term
"spostamenti" was erroneous, it found that within the context of the patent
spostamenti/movements could in fact meaningfully refer to
movements of the apparatus of the invention over the wall; accordingly, it found that the strict conditions for allowing the correction under Rule 139 EPC were not met. Regardless, the Board considered that the overriding issue was in fact whether or not this amendment complied with Article 123(2) EPC. In this regard, the Board argued that it would be clear to the person skilled in the art reading the application as filed that operation of the claimed apparatus would implicitly result in a
“difference” or
“differences” in certain observed values. Accordingly, in the Board’s view, the term
"(in function of the) differences" in claim 1 would not present the skilled person with any new information not directly and unambiguously derivable from the application as filed, thus allowing (under Art. 123(2) EPC) the amendment of (spostamenti)
”movements” to (scostamenti)
”differences”.
The Board further considered the term
“monitor” - rather than
"control" - in claim 1 based on the original
“controllo/controllare” not to contravene Article 123(2) EPC in view of the disclosure of the patent as a whole, which discloses both monitoring and controlling of the dehumidifying process.