6.6.8 Calibration and identifiable measurement method

In T 641/07 (measurement method could be identified by reproducing an example), the main issues the board had to deal with were whether measurement methods could be identified, whether an incorrect reference to a measurement method could be corrected and whether details of how to perform the method of measuring one of the parameters could be ascertained. The board held, citing T 485/00, that when a skilled person was enabled to reproduce the invention, and it was sufficient for him to reproduce one of the examples in order to identify the method employed to measure the value of a parameter, there was no insufficiency in the description since the identification procedure in question could not be regarded as involving an undue burden.

The board in T 1224/15 was, in particular, unconvinced by the argument that measuring the level of a polyamide's crystallinity was insufficiently described. The documents produced proved that this feature and the method of measuring it were among the skilled person's capabilities as at the invention's date of priority. The skilled person was therefore capable of supplementing the instructions given in the patent on how to measure the relevant parameters. The patent also contained a number of examples that were detailed enough to enable the skilled person to reproduce some of them and so identify or calibrate the measurement method used (see T 641/07). Lastly, the argument was not supported by any tangible evidence or (failed) attempt to reproduce the examples. The board was thus unconvinced that there was any lack of information in the patent that prevented the invention claimed from being carried out.

In T 786/15 the board considered that, since it was possible for the skilled person to calibrate the method of measurement of the Tg by reverse engineering, the Tg parameter recited in claim 1 was not ambiguous, even at values close to the end ranges. Art. 83 EPC was fulfilled in this case.

For other decisions dealing with the calibration of a method in the context of Art. 83 EPC, see T 1712/09 (no attempt at calibration made – burden of proof), T 1062/98 and T 485/00 (possibility of calibrating methods of determining the relevant parameters), and T 45/09.