2.3.3 General claim interpretation

Decision T 190/99 gives guidance on how to interpret a claim as granted for the purpose of Art. 123(3) EPC. The skilled person, when considering a claim, should rule out interpretations which are illogical or which do not make technical sense. He should try, with synthetical propensity, i.e. building up rather than tearing down, to arrive at an interpretation of the claim which is technically sensible and takes into account the whole disclosure of the patent (Art. 69 EPC). The patent must be construed by a mind willing to understand, not a mind desirous of misunderstanding (this frequently cited decision was more recently referred to in the context of Art. 123(3) EPC, for example, in T 1084/10, T 1009/12, T 916/15).

In T 287/11 the question to be answered was whether the claims of the main request covered any compositions or methods which were not covered by the claims as granted. The board considered decision T 999/10, which had been cited by the appellant, where it was stated that in view of the sequential ("cascade") formulation of the claim, there was no doubt as to the "intention" of the patent proprietor that no block copolymers other than the specific SIS-type might be present in the adhesive. The board in the case at issue held that the scope of protection should not be interpreted, however, in the light of the intention of the drafter of a claim, since this was a subjective criterion, but rather on the basis of the meaning generally accepted by the person skilled in the art to the technical features defined in said claim.

In T 1825/13 the board raised the question of whether the words "PQCA of a printing press" should be understood to be directed to the PQCA (printing quality checking apparatus) as such in the sense of "PQCA for a printing press ..." ("partial interpretation"), or to a printing press comprising the PQCA ("holistic interpretation"). In its decision, the board considered that some characterising features were not relevant for the PQCA as such, and this raised doubts as to whether the partial interpretation was appropriate. In order to clarify the scope of the claim, the board reverted to the description, which indicated that the "invention relates to a printing press having .... a PQCA ...". In addition, the board noted that during the examining proceedings the holistic interpretation had prevailed. Therefore, in view of the text of the patent as granted and in order to be coherent with the grant and opposition proceedings, the board adopted the holistic interpretation. In the assessment under Art. 123(3) EPC the board considered that the feature "by heat" in relation to a drying device was connected to the printing press but not to the PQCA; in view of its new holistic interpretation, the deletion of the feature extended the scope of protection of the patent.

In T 2174/16 the board recalled that the principle of legal certainty for third parties was of utmost importance when determining the scope of protection conferred by the patent as granted.