3.1.5 Explicit or implicit disclosure of the features of the invention in the priority document
In T 289/00 the contested feature of Claim 1 was that a channel was enclosed on all sides. The board accepted that the reference in the priority application to the channel as "filled with air" did not in itself mean that it was enclosed. However, the reference had to be seen together with the other information on this matter which the skilled person would derive from the application (cf. Art. 88(4) EPC 1973). A skilled person considering the priority application documents as a whole would conclude, without further information, that the channel would be enclosed on all sides.
The patent at issue in T 578/08 contained only device claims, whereas the previous application contained only process claims (the description and the drawings being largely identical). However, the board found that the wording of the previous application's claim 1 already presupposed structural device components in addition to specifying process steps that could only be performed by suitable – and so structural – technical means. General technical means suitable for performing the specified functions were therefore implicitly disclosed. Besides, the previous application repeatedly explained that the process described and claimed was performed automatically, which likewise called for suitable technical means. Priority was thus validly claimed.