A very recent decision of the EPO Board of Appeal (BoA) has ruled in favor of the validity of a European patent despite the deletion of the drawings originally contained in the patent, thereby reversing a first instance decision of the EPO Opposition Division (OD). The decision is case no. T 2259/09 of 7 June 2013.

This BoA decision is very important because it should help forestall the application of an ever-stricter standard to the amendments allowed at the EPO, not least because this standard is already much stricter than that generally applied at other Offices.

The facts of the case are the following:

Following the grant of a European patent, a third party filed an opposition. To counter the opposition, the patentee filed amended claims and requested, in the event that the patent could be maintained with those amended claims, that all the patent drawings be deleted. Specifically, the claim amendment consisted of the deletion of the reference numbers connecting the claimed features with the drawings.

While the OD agreed that the amended claims were literally supported in the original application underlying the patent, it also held that the deletion of the drawings amounted to a broadening of the scope of protection of the patent, such broadening being prohibited by the European Patent Convention (EPC) after the patent grants. Indeed, the OD argued that, while according to the EPC the scope of the claims is determined by the claims, the description and drawings may be used to interpret the claims, particularly to clear ambiguities. As a result, the OD held that deleting the drawings could lead to the broadening of the scope of protection.

Contrary to this, the BoA has now decided that the deletion of the drawings did not, in the present case, cause the scope of protection to be broadened. This is for two reasons. The first is a more factual one, in that the amended claims were not limited to any of the details disclosed in the deleted drawings. The second reason is more legal in nature: while the EPC does provide that patent drawings may be helpful, of even necessary, for resolving any ambiguities, no such ambiguities could be found in the present case, and indeed no such ambiguities had been identified in the OD decision revoking the patent. The BoA thus concluded that, in the present case, claim 1 when read in the light of a drawing-free patent did not have a different meaning compared to the one it would have had when read in light of the drawings. The patent could therefore be maintained in the version comprising amended claim 1, but without the drawings, as this version did not cause the patent to confer a broader protection compared with the granted version.

This is certainly a very positive decision for supporting amendments amounting to the deletion of technical information from a patent. Indeed, while the more frequent amendments amount to the insertion of technical information into the claims, it does happen that an amendment may also be needed in the form of deletion of technical information when it is no longer consistent with the invention. Deleting this information leads to a clearer patent, which of course is favorable both to the patentee and to third parties. Allowing this type of deletion is therefore of great benefit to the patent system as a whole, and the BoA decision will form a good legal basis for achieving such benefit at the EPO as well.

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