2.5.1 Addition of technical features defining the invention more narrowly

In the case of a change in the technical features of the invention, if the technical features of the claimed invention after amendment are more narrowly defined, the extent of the protection conferred is less (G 2/88, OJ 1990, 93, point 4.1 of the Reasons).

In T 970/17 claim 1 of the third auxiliary request included all the features of claim 1 as granted but also several additional technical features. Both claims were product claims. The board concluded that claim 1 of the third auxiliary request had a narrower scope of protection than claim 1 as granted (see G 2/88, point 4.1 of the Reasons). The opponent had argued that it was not allowable under Art. 123(3) EPC to claim a physical entity which was different from the physical entity claimed in the patent as granted (here: claim 1 of the third auxiliary request was directed to a vascular access port comprising the septum according to claim 1 as granted). The board, however, held that what mattered was not what the first technical feature in a claim was, but rather what technical features the claims included in their totality. In the board's view, the opponent's arguments relating to possible differences in the German patent law on contributory infringement did not change the above assessment. There was a difference between the "extent of the protection conferred" by a patent under Art. 69 EPC and the "rights conferred" by a patent under Art. 64 EPC.