The way added matter is treated under Article 123 of the EPC can be strict, particularly during opposition. A recent appeal followed a common route. An amendment proposed by the applicant was considered added matter (not clear and unambiguous support) and the applicant’s request for deletion of this amendment was also rejected.
The proposed amendment was ‘blind openings not in a concentric groove’. At appeal, an amendment was allowed to be made to ‘point-like blind openings”. Some might argue this is broader than the original wording of ‘discrete blind openings’ but that is not of primary interest here as I would argue it is not. What is more interesting is that the amendment was considered supported in that the original PCT application filed was in the Spanish language.
As you may know, the EPC has 3 official languages French, German and English so the EP application being discussed needed a translation into one of the official languages. This saved the applicant because, in the original EP application, discrete blind openings seem to have been a mistranslation of the Spanish for ‘point like’ blind openings. Discrete not being a proper translation of point like!
The assumption was that the mistranslation was a mistake and so could be corrected as the PCT application provided support. No doubt if the application had been maintained with discrete the proprietor would have kept the broader interpretation rather than the finding by the appeal board. A cynic might suggest that an attempt when filing to ‘broaden’ has been frustrated by the appeal board.
For opponents, the delay in the applicant making the ‘obvious’ amendment in the translation of ‘discrete’ back to ‘point like’ I am sure was annoying and possibly the opponents would not have needed to oppose the grant.