Friday, February 24, 2017 T 1896/11 - Clearly incorrectly claimed?

Incorrect password...

As suggested by a reader, this opposition appeal is of interest since it deals with the situation where a claim as granted is technically 'incorrect'  in that it does not correspond to the technical teaching of the description. The question at hand is whether independent method claim 5 of each of the appellant's respective requests (being the patent proprietor) infringes Art. 123(3) EPC since the claim has been amended in each of the requests to correct the technical mistake.

The appellant provides two lines of arguments to argue that the amendments do not infringe Art. 123(3). The first line of argument is that claim 5 of the granted patent contained an inaccurate technical statement, and that from the description it was clear what was obviously intended and, following decision T 108/91 (OJ 1994, 228), claim 5 could be corrected to reflect this intention.

The second line of argument is: in order to establish the protection conferred by claim 5 of the granted patent, and thus to identify the boundary of acceptable amendments, Article 69 EPC had to be taken into account. Since the current amendments to claim 5 reflected this understanding, they did not extend the protection conferred and therefore did not infringe Article 123(3) EPC.

Do either of T 108/91 and Art. 69 EPC apply and bring relieve? The current BoA does not think so.