2.4.4 Deletion of disclaimer

In T 532/08 the board held that, in the case at issue, the disclaimer could only be omitted without extending the scope of protection if it was beyond doubt that the components (of the disclaimed suspension) identified by trade names did not comprise any of the claimed tensides. However, it could not be unequivocally established what was excluded by a disclaimer referring to trade names, as a product designated by a trade name may change over time while keeping its name.

In T 136/12 the amended disclaimer was narrower than the disclaimer in claim 1 of the patent as granted, whereas the positive features of that claim had remained the same. The board found that the amended claim extended the scope of protection and observed in this context that the case law of the boards had consistently taken disclaimers into account when examining whether a claim amended by introducing, modifying or deleting a disclaimer fulfilled the requirements of Art. 123(3) EPC.