Wednesday, September 05, 2018 T 383/14 - Sufficiency of "only"

This opposition concerns a sorting table for sorting out the foreign bodies from harvested small fruit. The table has openings that will only let the small foreign objects pass through (de façon à laisser passer uniquement les petits corps étrangers). Elsewhere, there are openings that permit only berries to pass through (permettre le passage et la chute des baies de raisin à trier seulement).

The opponent questioned the sufficiency of the description with respect to  these features. The means shown in the description will at times also allow unintended objects to pass through; hence the shown means neither satisfy the 'uniquement' nor the 'seulement' requirement. Moreover, these terms are perfectly clear, so no interpretation based on the description should be allowed for them.

The board explains that the skilled person will try to reach an interpretation of the claims that makes technical sense, and that takes into account the whole of the disclosure of the invention in the patent. The sorting table allows sorting of foreign bodies that are either smaller or larger than the berries. That it is not "only" the grape berries that pass through the openings, did not convince the Board . This is not the realistic situation in which the reproducibility of the sorting needs to be shown, but rather that of an occasional failure perfectly foreseeable for a sorting machine. The claim is thus sufficiently disclosed.

That the disputed terms are clear in themselves is no objection, as they are used in claim which is to a certain point abstracted to an ideal situation. The skilled person will understand this. 

Tuesday, June 20, 2017 T 2456/12 & T 0059/13 - Interpretation by the skilled persion

In two recent decisions in opposition appeal, the Board addressed how the skilled person interprets the claims. In interpreting the claims for assessing novelty and inventive step, the Board refers to established case law and emphasizes that "the patent must be construed by a mind willing to understand, not a mind desirous of misunderstanding" and that "the skilled person should try with synthetical propensity, to arrive at an interpretation which is technically sensible and takes into account the whole of the disclosure of a patent".