T 0266/15 - Clarity in opposition

Key point

• "The appellant argued that the patent in suit did not disclose, in a manner sufficiently clear and complete, how to obtain the claimed antimicrobial composite, in which the antimicrobial metal in elemental form was present in an amount of from 10 mg/m² to 600 mg/m² of composite. It further argued that this feature was not clear.
• Claim 11 as granted already required a (different) specific amount of antimicrobial metal in elemental form per surface of composite. Thus, any lack of clarity which could derive from that relative amount was already present in the claims as granted, and cannot be examined in these opposition appeal proceedings (G 3/14). Article 100(b) EPC was not invoked by the appellant in its notice of opposition. Such a fresh ground could only be examined during these appeal proceedings with the consent of the respondent (G 10/91), which had not been given." 
• As a note, the holding of G 10/91 regarding fresh grounds does not apply to any issues caused by the amendments made during opposition (T 0739/08). Although the Board may have considered that the attack could equally have been raised against claim 11 as granted, and is therefore not admissible, they don't say this.

T 0266/15 - link


Reasons for the Decision
First auxiliary request


4. Amendments


The appellant has not raised any objections under Article 123(2) EPC further to those already examined with respect to the main request, which the board considered not convincing for the reasons already explained (see point 2.2. above).


Clarity and sufficiency of disclosure


The appellant argued that the patent in suit did not disclose, in a manner sufficiently clear and complete, how to obtain the claimed antimicrobial composite, in which the antimicrobial metal in elemental form was present in an amount of from 10 mg/m**(2) to 600 mg/m**(2) of composite. It further argued that this feature was not clear.


Claim 11 as granted already required a (different) specific amount of antimicrobial metal in elemental form per surface of composite. Thus, any lack of clarity which could derive from that relative amount was already present in the claims as granted, and cannot be examined in these opposition appeal proceedings (G 3/14).


Article 100(b) EPC was not invoked by the appellant in its notice of opposition. Such a fresh ground could only be examined during these appeal proceedings with the consent of the respondent (G 10/91), which had not been given.


For those reasons, these objections are not admissible.