Invalidating a european patent
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In essence, these aimed to clarify which, if any, types of amendment should be open to examination for clarity; to what extent the claims should be examined, if at all; and what criteria should be used for determining whether examination was necessary in the event that the Board ruled that a clarity examination would sometimes, but not always, be necessary during opposition proceedings.“In considering whether, for the purposes of Article 101(3) EPC, a patent as amended meets the requirements of the EPC, the claims of the patent may be examined for compliance with the requirements of Article 84 EPC only when, and then to the extent that the amendment introduces non-compliance with Article 84 EPC.”At first sight this seems to raise the question of when an amendment may be said to “introduce” non-compliance with Article 84, i.e. However, the Enlarged Board gave a number of examples in the Decision which consider several types of claim amendments.
In the Board’s view, allowing a wide-ranging re-examination for clarity would in effect make Article 84 EPC a ground for opposition, contrary to the clearly expressed intent of the legislator.
At over 90 pages in length, the decision is not the easiest to digest, and contains a number of aspects which are likely to provoke further discussion.
Broadly speaking, however, the decision confirms that amendments based on features present in the claims as originally granted cannot generally be re-examined for clarity during Opposition proceedings, even where those features are arguably unclear.
Overall, therefore, while the Enlarged Board’s decision in G 3/14 may not bring lack of clarity into play in Opposition proceedings to the extent opponents may have liked (and patentees feared), neither does it provide a blanket defence against allegations of lack of clarity under all circumstances.
Under Article 84 of the European Patent Convention, the claims of a patent application must be clear.
It seems that the Belgian Supreme Court (“”) has now reached a turning point in this matter.
Also the rules laid down in Article 1022 of the Belgian Judicial Code on the recovery by the successful party of lawyers’ fees and costs, on the one hand, and the Belgian case law regarding the recovery of costs and fees of technical experts (such as patent attorneys) assisting parties in court proceedings, on the other hand, are at present questioned in view of their compatibility with Article 14 of the Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights (“Enforcement Directive”).Until recently the prima facie validity of patents was virtually held untouchable in PI proceedings.Indeed judges in PI proceedings traditionally were reluctant to participate in the technical debate regarding the prima facie validity of the patent invoked.The Questions Referred Noting two competing and contradictory lines of jurisprudence in previous decisions, the Board in T 373/12 referred four questions to the Enlarged Board.The questions are not repeated here, but can be read in the full text of the decision.However, where the alleged lack of compliance has not been introduced by the amendment, such cases are in substance no different to Type B.” For this type of amendment it therefore seems that a careful assessment will have to be made on a case-by-case basis as to whether or not the removal of the feature from its original context “introduces” a lack of clarity.