Saturday, March 28, 2015 G 3/14 (2) - EPC requires all dependent claims to be examined on clarity too

 

We discussed the main answers given by the Enlarged Board in G 3/14 to the referred questions in yesterday's post "G 3/14 - is the clarity issue newly introduced or not?". Today, we give attention one of the analyses underlying the decision: must all claims be examined on clarity by the Examining Division, also all dependent claims? The Enlarged Board seems to answer this with a very clear "yes".

Background / Summary of Facts and Submissions

Introduction

I. During the appeal proceedings in the referring case (T 373/12) the proprietor filed an auxiliary request for maintenance of the patent which consisted of a combination of granted claim 1 and granted dependent claim 3. This granted dependent claim contained a lack of clarity, namely that the claimed article was coated "over substantially all its surface area". By its decision dated 2 April 2014 and in the light of what was seen as conflicting jurisprudence of the Boards of Appeal, the Board referred the following questions to the Enlarged Board of Appeal under Article 112 EPC (hereafter: "the referred questions"):