Gap of Information is Reason for Revoking a European Patent
The Situation: In European patent law, opposition against a patent grant can be based only on particular grounds, with one of the grounds being insufficiency of disclosure, meaning that the invention is not disclosed clearly enough for a person skilled in the art to carry it out.
The Development: The European Patent Office affirmed this principle with its recent rejection of a mechanical device patent, citing a lack of disclosure regarding how certain "angled" and "oblique" openings were to be provided for a particular apparatus seeking patent protection.
Looking Ahead: The Technical Board of Appeal stresses that evidence supporting the common general knowledge of a skilled person must be presented by the patentee/respondent, and it is not the responsibility of an opponent/appellant to prove the opposite.
An opposition against the grant of a European patent can only be based on the grounds specified in Article 100 European Patent Convention, with one of the grounds being that the invention is not disclosed clearly and completely enough for a person skilled in the art to carry it out. This ground of opposition, also referred to as the sufficiency of disclosure requirement, is rarely used successfully. Insufficiency of disclosure is given in cases where an undue number of experiments ("research program") are necessary for implementing a claimed subject matter. This principle has recently been confirmed by the European Patent Office for a mechanical device patent with its decision T 0421/16. This recent decision is significant for the following two reasons. Guidance for the Skilled Person Each patent must provide sufficient guidance for implementing a claimed subject. The skilled person cannot be left with a trial-and-error approach involving an unacceptable number of trials to close gaps of information. In the decided case, an "apparatus for the execution of a method for the removal of liquids from particulate material by evaporation through the supply of heat" was claimed. According to the claim, the heat is to be transferred to the particulate material through superheated steam, which also has to condition the particulate material such that it:
- rotates in a fluidized bed above the bottom of an annular chamber with openings in the bottom, allowing the superheated steam to enter into the annular chamber; and
- possibly moves from the region of introducing the particulate material to be dried into the annular chamber to the region to remove the dried particulate material from the annular chamber.
Two Key Takeaways
- Although not all features of a claimed apparatus have to be disclosed in a patent, at least all structural features necessary to obtain a claimed result have to be explicitly or implicitly described within the patent; otherwise, there will be a gap of information.
- Common general knowledge can close a gap of information when only respective evidence is submitted.
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