Lack of clarity of an auxiliary request

The general admissibility of auxiliary request in appeal proceedings for the purpose of maintaining a limited form of the patent has already been affirmed by the Vienna Appeal Court in 34 R 16/15w, Bodenbearbeitungsgerät. Objections to clarity are not grounds for opposition, but must be examined in opposition proceedings if changes have occurred, for example if amended claims are submitted. A contradiction between the wording of amended claim 1 and the description as well as the retained claim 6 leads to a lack of clarity about the scope of protection. For this reason alone, claim 1 of the auxiliary claim cannot be granted (Vienna Appeal Court 19.6.2018, 133 R 12/18i).

21.01.2019