EPO T 1436/12
For the decision, click here [C].Key points
- The applicant wishes to rely on feature mentioned in another patent application which is incorporated by reference in the description at issue. However, the reference was to "commonly assigned, U.S. Patent Application Serial No. [Attorney Docket No. 53807-00023USPT] filed concurrently herewith", this US patent application was not yet published, therefore does not meet the requirement that "a copy of the document was available to the EPO, or to the receiving Office if the application is a Euro-PCT application which was not filed at the EPO as the receiving Office, on or before the date of filing of the application".
- The applicant tries to change the reference into a reference to the PCT application which was concurrently filed with the EPO as receiving office, as amendment or as correction of error. The Board does not allow this, since it was not directly and unambiguously derivable (or immediately evident) that such PCT application was intended.
- This result can be compared with T 0737/90, about the following reference:
"In patent application Serial No. ........, filed concurrently herewith and assigned to the assignee of the present invention there is disclosed ...".
That was found to be enabling, since the skilled person could retrieve that document.
III. Page 8 of the description as originally filed contained the following paragraph:
"Further specific features and details of the layered architecture, including the SwBP software structure that enables the internal communication between modules within the mobile platform assembly are described in commonly assigned, U.S. Patent Application Serial No. [Attorney Docket No. 53807-00023USPT] filed concurrently herewith, the disclosure of which is hereby incorporated by reference."
Page 8 as filed with letter dated 10 November 2011 was amended so that it now referred to a "[...] commonly assigned, PCT Patent Application [Attorney Docket No. 53807-00023USPT] filed concurrently herewith [...]".
