EPO Enlarged Board of Appeal case law update
G 1/24 –update
By way of background, the EBA referral in G 1/24 stemmed from opposition-appeal proceedings concerning European Patent 3076804 (Philip Morris Products S.A.), relating to a vaping device. In the opposition, the validity of the patent essentially turned on the meaning of the term “gathered” in claim 1. Claim 1 required that the claimed device comprise an “aerosol-forming substrate” which “comprises a gathered sheetof aerosol-forming material”. The Opposition Division interpreted this term narrowly as meaninga sheet which is “folded and convoluted to occupy a tridimensional space”, disregarding a broader definition given in paragraph [0035] of the patent, which —if applied to claim 1 —would have covered a prior art device and invalidated the patent. The Opposition Division held that recourse to the description for claim interpretation was justified only in exceptional circumstances, namely where the claimed subject-matter
