2.3. Extent of protection

In T 131/15 the narrow definition of the feature at issue in claim 1 of the granted patent, as advocated by the opponent (namely "opposite direction" interpreted in a precise geometrical sense), would have had the effect that none of the disclosed embodiments would have fallen within the scope of protection of the claim. However, the board highlighted that, in determining whether the requirements of Art. 123(3) EPC 1973 were met, it was not sufficient to look only at the claims in isolation. The approach to be followed was set out in G 2/88 (OJ EPO 1990, 93) with reference to Art. 69(1) EPC 1973 and its Protocol. In the light of these principles, the board came to the following conclusion: 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 was 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 (namely "transmitted and received beams follow substantially the same path, with a small deviation to take account of the physical sizes of the transmitter and receiver").