T 0195/20 - Claim interpretation and Art. 123(2)

 Key points

• The Board, for Art.100(c): “Turning now to the feature in question: "(1.3) providing (112) secured access by the user to the content site upon confirmation of authenticating, [...]", the board considers that, on the face of it, there seems to be an ambiguity between whether the clause "by the user" modifies the "secured access" or the "provi­ding".” The feature had been amended during prosecution by changing "to" "into by". The question is whether this amendment violates Art.123(2). 
• The application as filed only provides basis for "access by the user" (i.e. the system permitting the user to access the content site, as I understand it), not for "providing by the user", i.e. the user giving access to the content sent to someone else.
• The opponent had filed “a declaration by [Ms.] Gray, Professor of English at the Central Washington University, and an expert opinion by [Ms.] Mondorf, Professor of English Linguistics at the University of Mainz, in order to support its case” about interpretation of the feature at issue.
• “The board takes the view that already the mere proximity of the clause "by the user" speaks in favour of it modifying "access" rather than "providing". ”
• The expert declarations are duly considered: “In the linguistic terms as used by Prof. Gray and Mondorf, this means that the benefactive and the agent roles coincide in the case to hand. The user "to which" the access is provided will be the same one "by which" the access is carried out, as the skilled person would understand.”
• “the board considers that, on the face of it, there seems to be an ambiguity between whether the clause "by the user" modifies the "secured access" or the "provi­ding". That is, although the user clearly has an "agent" rule due to the preposition "by" it may be asked whether the user is the "agent" of the access or of the providing.” emphasis added.
• “The board agrees that claim 1 as granted does not exclude the - entirely reasonable - possibility that the user also contributes to the process of providing secured access, for instance "by click[ing] okay to accept cookies or a data protection policy or to install a program". This does not, however, mean that this is implied by the claim language.”
• However, “In summary, the board finds that the skilled person would construe feature 1.3 so that it is the user to which access is provided or, in other words, so that "access by the user to the content site" is provided and that the agent of the providing is un­defined - as it is, incidentally, in original claim 1”
• Therefore claim 1 has basis in the application as filed.

T 0195/20 -

https://www.epo.org/law-practice/case-law-appeals/recent/t200195eu1.html

decision text omitted.