Friday, 30 August 2019

T 2380/16 - the meaning of may


Independent claim 1 of the main request begins as follows:
A press fabric for a pulp machine having a multilayer structure obtained by weaving warps, each of which is selected from a group consisting of a monofilament, a monofilament twisted yarn, and a twisted yarn having a monofilament as a core with, as wefts, (...). 
The underlined part being added compared to claim 1 as filed. The opposition division found this addition to be added subject matter, since this formulation also covers a mixture of different types of monofilaments, yet the application only appears to give examples where a single type is used.
The board did not agree.

Reasons
(...)
1.2 Mixture in warps
1.2.1 Under point 2.1.2 of the reasons the following feature of claim 1 of the main request that each of the warps
"is selected from a group consisting of a monofilament, a monofilament twisted yarn, and a twisted yarn having a monofilament as a core"
is considered as lacking basis in the application as originally filed, contrary to Article 123(2) EPC.
The reason given is that said feature would imply that the warps can be formed from a mixture of monofilaments, monofilament twisted yarns or twisted yarns having a monofilament as a core although, in the application as originally filed, it would only be disclosed, on the one side, that each of the warps is a monofilament and, on the other side, that each of the warps is either a monofilament twisted yarn or a twisted yarn having monofilament as a core.
1.2.2 The Board does not share this view.
The term "monofilament" is used with respect to the warps in the application as originally filed, see for instance original claim 1 or the embodiment on page 17.
Page 6, last sentence of the first full paragraph of the application as originally filed, states that "[e]ach of the monofilaments serving as the warps may be either a monofilament twisted yarn or a twisted yarn having a monofilament as a core" (emphasis added by the Board).
The term "may" implies that the monofilaments serving as the warps may be either a monofilament twisted yarn or a twisted yarn having a monofilament as a core, or may not be. In other words, each monofilament may be a regular (i.e. single strand) monofilament, or may be a monofilament twisted yarn, or may be a twisted yarn having a monofilament as a core. Hence, the skilled person would directly and immediately derive from this passage that any one of the warps may be any of these three alternatives, so any mixture can be used for the warps.
This passage of the original description is to be understood as presenting two examples of yarns, which for the purposes of the invention, are considered as falling within the broader term "monofilament". A monofilament twisted yarn or a twisted yarn having a monofilament as a core can then be used in place of a monofilament if desired.
Contrary to the reasons, original claim 9 does not contradict this interpretation of the disclosure in the description.
Accordingly, the skilled person would understand from the application as originally filed that the warps can be formed from a mixture of monofilaments, monofilament twisted yarns and twisted yarns having a monofilament as a core.
Consequently, the feature at stake does not contravene Article 123(2) EPC.
This decision  T 2380/16 (pdf) has European Case Law Identifier: ECLI:EP:BA:2019:T238016.20190827
The file wrapper can be found here. Image "Natural beauty" by fishhawk obtained under CC BY2.0 license.

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