T 2048/22 - G 1/24 for Art. 123(2)

Key points

• "Opponent 1 raised several objections of added subject-matter, as follows. It argued that the application as filed did not contain any basis for two kinds of pores or perforations, namely co-aligned and common pores or perforations as required by claim 1 as granted."
•  "when construing this feature in the light of the description of the patent (see in this respect decision G 1/24 of the Enlarged Board of Appeal, Order), the skilled person would have established directly and unambiguously that the same pores or perforations are intended. "
• " Contrary to opponent 1's view, the board further holds that the term "pores or perforations" in claim 1 as granted creates ambiguity since it is unclear whether it expresses two alternative items or the same item. However, the board concurs with the patent proprietor's view that the skilled person, when construing this term in the light of the description of the patent (see in this respect decision G 1/24 of the Enlarged Board of Appeal, Order), would have directly and unambiguously established that pores and perforations indicate the same entity. This conclusion results for example from reference sign 4: ... "
•  "For these reasons, the board concluded that the amendments to claim 1 of the application as filed contained in claim 1 of the patent as granted do not lead to any added subject-matter. Therefore the ground for opposition pursuant to Article 100(c) EPC does not prejudice maintenance of the patent as granted."

EPO 

The link to the decision can be found after the jump.

https://www.epo.org/en/boards-of-appeal/decisions/t222048eu1