Disclaimers in European Patent Applications

Abstract

Abstract A European patent application may be amended by, among others, deleting a part of the claimed subject matter under established conditions or by the incorporation of an undisclosed or disclosed disclaimer. Disclaimers are a useful tool in order to maintain the balance between the practical needs of applicants and the interests of third parties in legal clarity and completeness. The incorporation of disclaimers may not extend beyond the content of the European patent application as filed and the protection it confers. The purpose of this paper is to illustrate how an applicant can introduce a negative technical feature into the patent application in the light of the extensive judicial practice of the Technical and Enlarged Boards of Appeal of the European Patent Office. The author has analysed the criteria for disclaimers set out in decisions G 1/03, G 2/10 and G 1/16 in accordance with the general notion of patent law and requirements of patentability. Additionally, this problem was also characterized in the light of the judicial practice of national courts and legislations of the EU Member States.