22 Feb 2017

T 1986/14 - Article 123(2) and digits

Key points

  • A mention of an amount " ranging from about 50.00% to about 90.00% by weight" in the application as filed does not provide basis for the feature that the amount is of "from 50% to 90% by weight. This is due to difference in accuracy between 50% and 50.00%.

EPO T 1986/14 - link



Reasons for the Decision
1. The appeal is admissible.
Amendments:
2. Main request
2.1 Claim 6 of the main request was amended by including the features "glycerin in an amount ranging from 50% to 90% by weight of the composition" and "sorbitol in at least 0.1% by weight of the composition".
2.2 Glycerin in an amount ranging from 50% to 90% by weight of the composition
The appellant argued that the amount of glycerin in claim 6 found a basis in the passage on page 9, lines 17-19, of the application as originally filed, which read "glycerin moisturizer can be present individually in an amount ranging from about 50.00% to about 90.00% by weight".
It was undisputed that 50% and 50.00% differ in their accuracy. For this reason, 50.00%/90.00%, on their own, cannot not provide a basis for the features 50% or 90%.
The applicant argued, however, that the use of the term "about" in the passage mentioned above indicated that it was not intended to restrict the claimed amount to ranges defined by end-points with four significant figures.
The feature "about 50.00% to about 90.00%" discloses a range with two end-points, namely 50.00% and 90.00%, and an area of undefined boundaries around them. No other end-point, such as 50% or 50.0%, is either implicitly or explicitly disclosed. For this reason, the passage cited cannot provide a basis for the aforementioned feature.

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