tag:blogger.com,1999:blog-2352189175211648260.post8601328305627380104..comments2023-10-24T14:45:41.342+02:00Comments on K’s Law: T 2063/12 – Clear In Itselforhttp://www.blogger.com/profile/07992102028406713066noreply@blogger.comBlogger2125tag:blogger.com,1999:blog-2352189175211648260.post-15822030409272098432013-11-11T13:51:06.721+01:002013-11-11T13:51:06.721+01:00There are quite a few decisions like this.
In a ...There are quite a few decisions like this. <br /><br />In a way it places a very heavy burden on the draftsperson to get everything defined perfectly when the application is drafted. <br /><br />One can take various views on this<br /><br />a) as suggested by the UK House of Lords in the Kirin-Amgen decision, a patent application is a legal document and must be prepared by an attorney who is trained in the relevant law. This attitude is a bit impractical as patent applications are often drafted abroad by an attorney but not one who knows the EPC and its case law in detail. <br />b) Every test has a tolerance. Therefore every test is unclear as far as the Appeal Boards are concerned. As every test has a tolerance, values defined by a test method have a range. The question is then not whether the claim is clear but rather are there values in the range which are found in the prior art - so the question becomes one of novelty or inventive step. If the range is not novel or inventive then the applicant/proprietor must include further details from the description to narrow the range (as mentioned by the Appeal Board some details are given on page 28). One can argue that if a test method is well known to the skilled person then such persons are aware of the range and hence the range is not unclear. The Appeal Board argues that the skilled person was well aware of the range:<br /><br />"It is known to the skilled person that the outcome of such GPC measurements is highly dependent on the sample concentration, calibration standard, eluent and column"<br /><br />Of course there is a good possibility that the range is very broad - but there are Appeal Board decisions that say that breadth of claim is not a problem for clarity per se. <br /><br />c) If b) is accepted then there might be some tests where a range cannot be defined. In such a case one could talk about a lack of clarity. <br /><br />Kind regards,<br /><br />William Bird<br />Patentive, Düsseldorf Billnoreply@blogger.comtag:blogger.com,1999:blog-2352189175211648260.post-3436990277828902702013-11-11T09:45:00.784+01:002013-11-11T09:45:00.784+01:00The decision was taken in the absence of the appel...The decision was taken in the absence of the appellant. In the invitation to oral proceedings, the Board expressed its opinion on Art. 84 EPC. In the absence of any further arguments they had no reason to deviate from this opinion, which was finally copy/pasted into the decision. Therefore, I would think that the approach was reasonable and would not squeeze a general teaching out of this decision.Anonymousnoreply@blogger.com