As a general rule, a claim is regarded as supported by the description unless there are well-founded reasons for believing that the skilled person would be unable, on the basis of the information given in the application as filed, to extend the particular teaching of the description to the whole of the field claimed by using routine methods of experimentation or analysis. Support must, however, be of a technical character; vague statements or assertions having no technical content provide no basis.
The division raises an objection of lack of support only if it has well-founded reasons. Once the division has set out a reasoned case that, for example, a broad claim is not supported over the whole of its breadth, the onus of demonstrating that the claim is fully supported lies with the applicant (see F‑IV, 4). Where an objection is raised, the reasons are, where possible, to be supported specifically by a published document.
A claim in generic form, i.e. relating to a whole class, e.g. of materials or machines, may be acceptable even if of broad scope, if there is fair support in the description and there is no reason to suppose that the invention cannot be worked through the whole of the field claimed. Where the information given appears insufficient to enable a person skilled in the art to extend the teaching of the description to parts of the field claimed but not explicitly described by using routine methods of experimentation or analysis, the division raises a reasoned objection, and invites the applicant to establish, by suitable response, that the invention can in fact be readily applied on the basis of the information given over the whole field claimed or, failing this, to restrict the claim accordingly.
The question of support is illustrated by the following examples:
Where it is found that the claims lack support in the description under Art. 84, this may lead to the issuing of a partial European or supplementary European search report under Rule 63 (see B‑VIII, 3.1 and B-VIII, 3.2). In such cases, in the absence of appropriate amendment and/or convincing arguments provided by the applicant in his response to the invitation under Rule 63(1) (see B‑VIII, 3.2) or to the search opinion under Rule 70a (see B‑XI, 8), an objection under Rule 63(3) will also arise (see H‑II, 5).
Date retrieved: 30 December 2018