2.7.2 From device claim to a method claim directed to using the device to carry out a work method

In T 653/16 the appellant (opponent) took the view that changing the category of claim 1 as granted from one directed to a device (floatable harbour power supply) to a method claim for carrying out a work method (method for supplying external power to a ship in the harbour) using the device extended the scope of protection. The board disagreed. In the case in hand, the patent as granted had solely contained claims directed to a physical entity per se. The Enlarged Board of Appeal had acknowledged that it was a fundamental principle of the EPC that any patent which claimed a physical entity per se conferred absolute protection upon that entity, i.e. for all uses of the entity, whether known or unknown (G 2/88, OJ 1990, 93). Contrary to the appellant's opinion, the scope of protection conferred by the patent as amended in line with auxiliary request 2 did not extend to cover the ship since that request was no longer directed to physical entities – for want of any device claims.