Where an expression in a granted claim, taken literally and in isolation, would have the effect of excluding all of the disclosed embodiments from the scope of protection, but where a definition of the expression may be derived from the patent itself which would locate (at least some of) the disclosed embodiments within the ambit of the claim, and provided this definition is not manifestly unreasonable having regard to the normal meaning of the words used in the expression, then in judging compliance with the requirements of Art. 123(3) EPC, the scope of protection should normally be considered to include at least that which would fall within the terms of the claim understood according to this definition.
Case date: 10 October 2019
Case number: T 0131/15
Court: European Patent Office (EPO), Board of Appeal
A full summary of this case has been published on Kluwer IP Law.
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Coincidentally, another blog (see Link below) has just flagged up another Art 123(3) EPC case, one in which the belated filing of more legible formal drawing sheets plunged the patent into the Art 123(2)/(3) inescapable trap. Believe it or not, it was the deletion of all the drawing sheets (to overcome the Art 123(2) problems) that triggered the Art 123(3) EPC fail. I am not able to accept the Board’s reasoning in that other case. How about you?
http://justpatentlaw.blogspot.com/2019/12/t-136013-substitute-drawings-give.html