T 1360/13 - Drawings much improved, but patent invalid
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| Drawing sheet 1 as replaced |
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| Drawing sheet 1 as originally filed |
The patent was
granted with drawing sheets exchanged according to Rule 26 PCT during the
international phase, the originally filed drawing sheets being of poor quality,
essentially showing black or grey elements. The same
exchanged drawing sheets which were part of the patent as granted are part of
the main request documents.
The board concluded that many details present in
the figures of the patent as granted are not disclosed directly and
unambiguously by the application as originally filed.
To overcome this problem, the proprietor filed a series of requests 9-17 in which all drawing sheets have been deleted and all references to the
figures in the description and claims have been deleted as well. (Requests 1-8 were withdrawn.) For the BA this corresponded to an extension of
protection, not allowable under Art 123(3) in view of Art 69. The board provided the following catchword.
Catchword
In view of Article 69(1) EPC which states that the description and the drawings shall be used to interpret the claims when determining the extent of the protection conferred by a European patent, after grant, any information in the description and/or drawings of a patent directly related to a feature of a claim and potentially restricting its interpretation cannot be removed from the patent without infringing Article 123(3) EPC.
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