T 0437/98 citing T 0190/99:
{
[1,1] = 4. Thus, in the board’s judgment, the skilled person aware from document D20 of the overall applicability of artificial transformation would have discarded the possibility that the amendment in claim 33 included artificial competence as this interpretation would not make any technical sense. Accordingly, no ambiguity is seen in the wording of claim 33 insofar as it can only be read as directed to bacterial cells which cannot be transformed by being made „naturally competent“. This finding is in agreement with the established practice of the Boards of Appeal, see for example T 190/99 of 6. March 2001.
}
T 0098/00 citing T 0190/99:
{
[1,1] = Although, this interpretation is not stated in the description, the Board holds that this explanation is the most likely one for the skilled person reading the patent document since any other interpretation does not make technical sense (cf. T 190/99, point 2.4 of the reasons).
}
T 0793/00 citing T 0190/99:
{
[1,1] = 3.2.3. A situation, which although concerning Article 123(3) EPC was, nevertheless, quite similar to the present question of how a claim should be read and interpreted, has been decided by another Board (T 190/99 of 6 March 2001) in favour of the Patent Proprietor. The Board found that „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 ie 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 (Article 69 EPC). The patent must be construed by a mind willing to understand not a mind desirous of misunderstanding“ (point 2.4 of the reasons).
}
T 0025/01 citing T 0190/99:
{
[1,1] = The replacement of the feature „heating“ by the feature „stirring“ in Claim 2 of the main request and the first and second auxiliary requests restricted the scope of Claim 2 as granted. Stirring Form II was an alternative included in Claim 2 as granted. Claim 2 as granted had the same wording as Claim 34 as originally filed and that claim covered among others, the embodiment disclosed in the application as filed related to „stirring Form II overnight in dry acetonitrile at ambient temperature, and recovering the resultant solid phase“ (cf. page 11, lines 29 to 31). Decision T 190/99 was cited in that respect.
[1,2] = 3.3. Nor can the Board rely on the previous decision T 190/99 to deviate from the above finding. Indeed, that decision related to a situation where definitions in a claim were wrong or could be wrongly understood (cf. point 2.2.1 of the reasons). However, in the present case, nothing was submitted by Appellant 1 in that respect.
}
T 0118/01 citing T 0190/99:
{
[1,1] = 5.3. According to the decision T 190/99 of 6 March 2001 (not published in OJ EPO), the skilled person when considering a claim should rule out interpretations which do not make technical sense and should arrive at an interpretation which is technically sensible and takes into account the whole disclosure of the patent. In the Board’s view, this interpretation of „without flow inversion phenomena“ makes technical sense and is also in line with the term „backmixing“ used in the art in connection with tubular chemical reactor (cf. D20, table 4 to 13; cf. D22, page 337, second paragraph). Therefore, the Board is satisfied that this is the true interpretation of the wording and sees no reason not to concur with the interpretation agreed by both parties.
}
T 0500/01 citing T 0190/99:
{
[1,1] = Claim 1 refers to „.. a method of producing a humanized immunoglobulin light chain having ... complementary determining regions (CDRs)..“ (emphases added by the board). The claim goes on to state that at least one non-CDR framework amino acid is derived from the donor chain also, and defines three criteria by which said non-CDR framework amino acid is to be selected. The wording in the introductory part of the claim defines that the term CDRs in claim 1 means light chain CDRs. Within one and the same claim a term cannot have different meanings. In this respect it should be borne in mind that according to the case law of the boards of appeal a claim must be construed by a mind willing to understand not a mind desirous of misunderstanding (cf T 190/99, 6 March 2001).
[1,2] = Finally, Respondent XVII’s comment, according to which the wording of claim 1 includes grafting of a heavy chain CDR into a light chain framework and thus contravenes Article 123(2) EPC, does not seem to be technically realistic and would require reading the claim with a mind desirous of misunderstanding (cf T 190/99 supra).
}
T 0034/02 citing T 0190/99:
{
[1,1] = 4.3.4 If, however, the relevant wording of Claim 1 were to be interpreted as proposed by opponent 01 (appellant 01), then it would not be consistent with the patent taken as a whole. Therefore, the skilled person trying, with synthetical propensity ie building up rather than tearing down (see T 190/99 of 6 March 200; point 2.4 of the reasons), to arrive at an interpretation of the relevant passage of Claim 1 which is technically sensible and takes into account the whole disclosure of the patent (Article 69 EPC) would rule out the interpretation of opponent 01 (appellant 01).
}
T 0898/99 citing T 0190/99:
{
[1,1] = 3.1.2. In the Board´s view, the objections raised by the appellants under Article 123(2) are based on a rather formalistic approach in reading the claim. It might be accepted that the literal sense of the claim could be regarded as referring to an adjustment of one of the rotation of the work gear and the rotation of the tool for maintaining a predetermined timed relationship between the tool and the work gear in addition to the control of the axes of the machine for imparting a predetermined relative rolling motion, whereby the predetermined rolling motion between the tool and the work gear is no longer maintained when the adjustment is made. However, the skilled person, who reads the claim in an attempt to make sense out of it (see T 190/99), would clearly consider such a reading of the claim as erroneous. Indeed, he would realize that the desired result of generating longitudinally curved tooth spaces in bevel and hypoid gears is achieved according to the patent in suit by the provision of a predetermined relative rolling motion between the tool and the work gear which is as though the work gear were in mesh with a theoretical generating gear rotating about a theoretical axis of rotation and having tooth surfaces represented by the stock removing surfaces of the tool, ie of a predetermined relative rolling motion as it would take place in a conventional machine of the kind having a cradle as shown in R8. When the conventional machine is operated for continuous indexing, then the rotational movement of the tool about its axis is controlled in order to treat collectively all of the work gear tooth spaces. Such control (of the timely relationship between work gear and tool) is carried out in the conventional machine whilst the work gear remains in mesh with the theoretical generating gear (this rolling motion implying a control of the relative spacial relationship between the work gear and the theoretical generating gear). Since in the machine according to the patent in suit a predetermined relative rolling motion must take place which is identical to the one that would take place in the conventional machine, the skilled person reading claim 1 would consider that the adjustment in order to maintain the predetermined timed relationship should be carried out simultaneously with the control of the axes for maintaining the predetermined relative rolling motion between the tool and the work gear such that the work gear remains in mesh with the theoretical generating gear as in the conventional machine, and therefore that the adjustment forms part of said control of the axes of the machine performed by the computer controlling means. Therefore, it cannot be concluded that the adjustment of one of the rotation of the work gear and the rotation of the tool so as to maintain said predetermined timed relationship between the tool and the work gear represents something different from or in addition to the control of the axes of the machine. This view, moreover, is entirely consistent with the description of the patent in suit, see eg page 6, lines 14 to 25 and the paragraph bridging pages 12 and 13.
[1,2] = 3.5.1. In the Board’s judgment, the correct approach in assessing the clarity of the claims consists in considering the claim as it would be read by a skilled person, ruling out interpretations which are illogical or which do not make technical sense, trying to arrive at an interpretation of the claim which is technically sensible and takes into account the whole disclosure of the patent (see T 190/99). On the basis of this approach, the Board is satisfied that the claims are sufficiently clear and that the requirements of Article 84 EPC are met.
}
T 0809/02 citing T 0190/99:
{
[1,1] = The expressions employed in claim 1 as granted for the components (A) and (B) were not supplemented in the amended claim 1 of the main request, but they were completely replaced by other expressions from the description. These new expressions were not identically reproduced from the description but were partly modified. Decision T 190/99 of 6 March 2001, cited by the respondent, merely pointed out that the claims should be read by the person skilled in the art who should avoid interpretations which were illogical or without technical sense. The claims as granted in the patent in suit were clear and had a technically meaningful sense. The claims as granted did not encompass all the meanings introduced in amended claim 1 for (A) and (B).
[1,2] = The issues to be decided, in the respondent’s view, were the interpretation of the claims and the extent of protection. The respondent cited decisions T 190/99 of 6 March 2001 and T 346/96 of 29 October 1998.
}
T 1898/07 citing T 0190/99:
{
[1,1] = 14. The Board is convinced that a skilled person willing to understand the application as published and trying to arrive at an interpretation which is technically sensible and takes into account the whole disclosure (cf. decision T 190/99 of 6 March 2001) will arrive at the conclusion that the application as filed, whenever it refers to the amount of an ingredient contained in the liquid formulations, indicates it as w/v.
}
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