The Enlarged Board of Appeal of the EPO recently issued the Decision G3/14 addressing the question of when, and to what extent, clarity objections under Article 84 EPC could be raised by a party challenging the validity of a European patent during opposition proceedings.
In brief, this Decision concludes that granted patent claims, including combinations of independent claims and their proper dependent claims, cannot be challenged for a lack of clarity during opposition proceedings. Rather, a formal objection of lack of clarity can only be made when the substance of a granted patent claim, independent or dependent, is changed by an amendment to that patent claim, and then only to the extent that the lack of clarity is introduced by the amendment.
I am wondering whether this Decision will mean that more anonymous 3rd party observations will be submitted in European patent applications in the future. I would assume so!
Following this Decision, it will no longer be possible to ”open up” clarity issues of already granted claims post-grant. In a sense, the Decision therefore reminds the EPO examiners that it is their duty to check all claims for clarity during the examination proceedings, i.e. pre-grant. Even if this decision closes the door for challenging already granted claims under Article 84 EPC during opposition proceedings, the EPC still provides a measure to challenge unclear and vague claims pre-grant. As mentioned in an earlier blog post here at www.sg.se, it is indeed possible to submit 3rd party observations in pending European patent applications under Article 115 EPC and then also to challenge the pending claims for lack of clarity under Article 84 EPC. Utilizing this measure, it is therefore possible to assist (even anonymously) the EPO examiners to identify unclear and vague claims should they not have identified these unclear or vague claims themselves.
If you and your company identify pending European patent applications with unclear or vague claims that are potentially poisonous to your business, it may therefore become increasingly appealing to submit lack-of-clarity observations in 3rd party observations in order to have the EPO examiners really examine the clarity before a European patent is granted.
In my humble opinion,