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Disclaimer (patent)




In Patent Law , a disclaimer is an amendment consisting in limiting a Claim of a patent or Patent Application by introducing a negative technical feature. It typically consists in excluding from a general feature specific embodiments or areas. During Prosecution , such amendments are sometimes made by applicants to their application, with the hope of fulfilling some Patentability criterions, such as the Novelty criterion.

The allowability of disclaimers is usually subject to certain conditions, which may vary from one country to another.


EUROPEAN PATENT OFFICE (EPO)


Under the Case Law of the Boards Of Appeal Of The EPO , disclaimers are allowed only in certain circumstances, as confirmed in G 1/03 And G 2/03 decisions.

"A disclaimer is not disclosed in the description may be allowable in order to:
  • restore novelty by delimiting a claim against State Of The Art under Article 54(3) and (4) EPC ;

  • restore novelty by delimiting a claim against an accidental anticipation under Article 54(2) EPC; an anticipation is accidental if it is so unrelated to and remote from the claimed Invention that the Person Skilled In The Art would never have taken it into consideration when making the invention; and

  • disclaim subject-matter which, under Articles 52 to 57 EPC, is excluded from patentability for non-technical reasons." {Link without Title}



REFERENCES


  • Guidelines for Examination in the EPO, Part C

  • --- Chapter III, 4.12. Negative limitations (e.g. disclaimers) {Link without Title}

  • --- Chapter VI, 5.3.11. Disclaimers not disclosed in the application as filed {Link without Title}



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