T1314 / 14: late modification of the description
According to the claim the nonwoven web was transferred from a delivery zone Zd to a recovery zone Zr.
The crucial point of the decision was whether the presence of intermediate elements between these two zones was excluded or not.
For the Chamber, while it may be accepted that the wording of the claim precludes such intermediate elements at first glance, the patent discloses in Figure 9 a buffer system, which according to the Chamber is not part of the issuing area.
The board concludes that the wording of the claim must be understood not to exclude the presence of intermediate elements between zones Zd and Zr.
Document D1 ‘is then destructive of novelty.
During the oral proceedings, the Contractor submitted a subsidiary request, with the same set of claims, but deleting from the description figures 7 to 9 and the associated description. In this way, the Chamber’s interpretation of the wording of the claim was no longer valid.
The Chamber does not allow this late application in the proceedings. The principle of procedural economy requires that the amendments be receivable prima facie in that they seek to resolve the critical points raised against the previous applications without raising new ones.
The Board finds that, prima facie, the novelty objection can not be considered to be overcome by such modifications that leave the wording of the claim unchanged. According to the case law of the Boards of Appeal, the interpretation of a claim is not normally considered to be more limited when an embodiment is deleted from the description.
In any event, to discuss for the first time at this stage the potential implications on the novelty issue of an elimination of certain embodiments covered by the claim as granted, would be contrary to the principles of procedural economy as well. equal opportunity between the two parties, despite the severe consequence for the respondent of the loss of the patent.