Under Art. 123(2), it is impermissible to add to a European application subject-matter which the skilled person cannot derive directly and unambiguously, using common general knowledge and also taking into account any features implicit to a person skilled in the art in what is expressly mentioned in the document, from the disclosure of the application as filed. Literal support is, however, not required by the wording of Art. 123(2) (see T 667/08).
The term "implicit disclosure" means no more than the clear and unambiguous consequence of what is explicitly mentioned in the application as filed. Thus, the common general knowledge must be taken into account in deciding what is clearly and unambiguously implied by the explicit disclosure of a document. However, the question of what may be rendered obvious by that disclosure in the light of common general knowledge is not relevant to the assessment of what is implicitly disclosed by that document (T 823/96, T 1125/07).
When assessing the conformity of the amended claims with the requirements of Art. 123(2), the focus is placed on what is really disclosed to the skilled person by the documents as filed as directed to a technical audience. In particular, the examining division needs to avoid disproportionally focusing on the structure of the claims as filed to the detriment of the subject-matter that the skilled person would directly and unambiguously derive from the application as a whole.
Furthermore, the assessment of the requirements of Art. 123(2) is made from the standpoint of the skilled person on a technical and reasonable basis, avoiding artificial and semantic constructions (T 99/13).
Under Art. 123(2) it is impermissible to add to a European application matter present only in the priority document for that application (see T 260/85) unless this is done under the provisions of Rule 56(3) (H‑IV, 2.3.2). For correction of errors, see H‑VI, 4.
Rule 56規定揭露內容的遺失片段或是遺失的圖式。
Rule 56 Missing parts of the description or missing drawings
(3) If the missing parts of the description or missing drawings are filed within the period under paragraph 2, and the application claims priority of an earlier application, the date of filing shall, provided that the missing parts of the description or the missing drawings are completely contained in the earlier application, remain the date on which the requirements laid down in Rule 40, paragraph 1, were fulfilled, where the applicant so requests and files, within the period under paragraph 2:
(a) a copy of the earlier application, unless such copy is available to the European Patent Office under Rule 53, paragraph 2;
(b) where the earlier application is not in an official language of the European Patent Office, a translation thereof in one of these languages, unless such copy is available to the European Patent Office under Rule 53, paragraph 3; and
(c) an indication as to where the missing parts of the description or the missing drawings are completely contained in the earlier application and, where applicable, in the translation thereof.
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