2.4. Deletions and replacements
2.4.5 Deletion of a drawing
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In T 2259/09, whilst the patent as granted comprised a set of Figures, in the amended patent according to the main request all drawings were deleted to comply with the requirements of Art. 123(2) EPC, and the description was correspondingly adapted. Concerning the examination of Art. 123(3) EPC, with the deletion of the drawings from the patent specification, technical information was undoubtedly lost. Whilst this loss of information might also introduce some uncertainties about certain details of the preferred embodiments depicted in the drawings, it could not be concluded, as in the impugned decision, that it automatically broadened the protection conferred. In the case at issue, the claims were not limited to any of the details, dimensions or features specifically depicted in the (deleted) drawings. Moreover, under Art. 69(1) EPC, reference to the drawings of a patent specification may be helpful or even necessary if an ambiguity exists in the granted claim. However, in the case at issue, the impugned decision did not identify any such ambiguity; nor could the board see any. Therefore, the deletion of the drawings did not extend the scope of the protection conferred by the main request.
- T 1360/13
In view of Article 69(1) EPC which states that the description and the drawings shall be used to interpret the claims when determining the extent of the protection conferred by a European patent, after grant, any information in the description and/or drawings of a patent directly related to a feature of a claim and potentially restricting its interpretation cannot be removed from the patent without infringing Article 123(3) EPC.
- Case law 2019
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In T 1360/13 the board rejected the appellant's (proprietor's) main request as contrary to Art. 123(2) EPC. The main request contained the drawing sheets which were part of the patent as granted. These had been exchanged according to R. 26 PCT during the international phase (receiving Office: EPO).The question in the present case was whether the deletion of the drawings and references thereto in the descriptions in several auxiliary requests had a broadening effect on the extent of protection conferred (Art. 123(3) EPC). Referring to G 2/88 (OJ EPO 1990, 93) and Art. 69 EPC, the board held that even if, after the claims have been read taken alone, no clarification seemed necessary, it could not be excluded that the description and drawings were necessary to interpret the claims, i.e. to determine the extent of the protection conferred. As a rule, the vocabulary used in a patent was unitary and dependent on the technical field of the invention and on the writer's own preferences. The description and drawings generally included explicit or implicit definitions of terms used in the claims, e.g. explanations as to the functions of the claimed features, the aims to be achieved by the invention, etc. Concentrating exclusively on the wording of the claim would mean that from the point of view of the extent of protection, the whole description and the drawings of the patent could be deleted, in which case, the intentions of the inventor would be completely ignored. The board concluded that, in view of Art. 69(1) EPC, after grant, any information in the description and/or drawings of a patent directly related to a feature of a claim and potentially restricting its interpretation cannot be removed from the patent without infringing Art. 123(3) EPC. In the present case, the deletion of the drawings and any references to them in the description led not only to a generalisation of the teaching of the patent but also to a more general interpretation of the claim. The board distinguished its case from T 2259/09 and T 236/12.