The question of whether an amendment consisting in combining granted claims can possibly give rise to an objectionable lack of clarity is disputed between the Boards. Here is one more decision in favour of the approach according to which clarity is not to be examined in this context.
The patent proprietors filed an appeal against the decision of the Opposition Division to revoke their patent.
During the oral proceedings before the Board, the patent proprietors withdrew all requests on file and filed one new request.
Here is what the Board had to say on the scope of examination:
*** Translation of the German original ***
[3] The present request is based on a combination of granted claims: claim 1 combines granted claims 1 and 11, dependent claims 2 to 8 are the same as in the patent as granted. As [the amendment] only corresponds to a syntactical redrafting of the claims, which does not lead to any substantial modification, there is, according to the established case law of the Boards of appeal, no reason to [raise] any new objection beyond A 100 EPC 1973 (see, for instance, T 367/96 [6.2], T 381/02 [2.3.7], T 1855/07 [2.2-4]).
Therefore, in the present case, in application of decisions G 9/91 and G 10/91, all that has to be examined in the appeal proceedings is whether one of the grounds of opposition raised in the opposition makes it impossible to maintain the patent.
To download the whole decision (in German), click here.
The file wrapper can be found here.
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