Conflicting events
In the present case, the respondent (patent proprietor) requested to supplement the minutes of the oral proceedings nearly three months after the notification of the minutes, namely to mention that the respondent 'requested to file a further request' during the oral proceedings, and that the respondent requested an interruption of the oral proceedings. The Board, however, considers the first request not to represent an actual request but rather an announcement of an intention (to file a further request) and therefore not to pertain to the 'essentials of the oral proceedings'. The Board also cannot recall the second request and questions the belated filing of the request for supplementing the minutes.
In opposition the patent was revoked because there was no support for a range of "0.2mm to 0.8mm diameter for warp and weft yarns". The patent application as filed has support for: "warp yarns having a diameter in the range of 0.20 mm to 0.80 mm and weft yarns having a diameter in the range of 0.20 mm to 1.0 mm". Thus, the proprietor reduced the scope of protection by giving up the diameter range from 0.8mm to 1.0mm for the weft yarns.
During the Opposition procedure the proprietor used G 1/93 to argue that the scope of protection of features without a technical contribution may be reduced without violating Art. 123(2). The Opponent and the Opposition Division did not share that opinion.
An appeal was filed with several requests in which the proprietor tried several strategies to overcome the A.123(2) and (3) problem. In the main request a correction of an obvious error was requested (change 1.0 to 0.8mm). In the auxiliary requests several variations of (undisclosed) ranges / values were requested. The outcome of the appeal procedure is that the scope of protection is now reduced to "infinitely small".
