CASELAW-EPO - reviews of EPO Boards of Appeal decisions

T 1006/22 – Too many and/or links in a claim = clarity problem

chat_bubble 2 comments access_time 2 minutes

The patent relates to a diagnostic method for rail vehicles.

Brief outline of the case

The patent was revoked by the OD and the proprietor appealed.

The board confirmed the decision of the OD for the patent as granted and for AR1-3. All other AR were not admitted.

The case is interesting in that the board confirmed the lack of clarity of AR2 decided by the OD.  

The problematic part of claim 1 of AR2

Claim 1 of AR 2 differs from claim 1 of the higher-ranking requests in that feature (g) has been replaced by feature (h) taken from the description:

which are recorded independently of the rail vehicle and independently of states or state changes of the rail vehicle or of vehicle components of the rail vehicle by means of measuring devices that are independent of the rail vehicle

The board’s decision

The board agreed with the contested decision and the respondents that feature (h) is linguistically unclear due to the numerous “and/or” links.

At the OP before the board, the proprietor explained in detail how these links should actually be understood. Nevertheless, for the board, the necessity of these explanations is an indication that the wording of the feature is unclear.

The lack of clarity is caused in particular by the fact that the “and/or” links concern a negative limitation, i.e. “independently”.

Thus, claim 1 of auxiliary request 2 is unclear.


It is not infrequent that in order to save claim fees, applicants bring in a few and/or links in independent claims, but more often in dependent claims.

I would say that with more than three to four and/or links in a claim, the claims becomes unclear, not to say unintelligible.

If those and/or links are found in the description, they might be acceptable in the claims. However, in the vast majority of applications, this is not the case, as the aim is clearly to save claim fees.

When considering the present case, the problem raised by the and/or links was compounded by the associated negative limitation.

Conclusion: and/or links + negative limitation = a guaranteed clarity problem

On the procedure

Claim 1 as granted was lacking N over EP 1 900 597, not mentioned in the ISR established by the EPO. The ISR mentions 1X and 1A document. According to the ISR the search was carried out in B61L.

EP 1 900 597, relates to a “Diagnostic system and method for monitoring a rail system” and is classified in B61L 27/00, which is also the classification unit of the patent.

Share this post


2 replies on “T 1006/22 – Too many and/or links in a claim = clarity problem”

Fabian Edlundsays:

Dear Daniel,
I can fully agree with you (and the Board) that an independent clam with too many options is susceptible to a clarity objection.

But is your opinion that also an independent claim with, let’s say, five “and/or” clauses also represents a clarity issue? In my mind, these clauses are just as clear (or unclear) as a set of five dependent claims all referring to “any of the preceding claims”. Logically, at least, both constructions denote the same permutations of features.

Do you mean that the more “claim efficient” construction is unclear because it’s only purpose is to save claim fees?

Avatar photoDaniel X. Thomassays:

Dear Fabian,

Thanks for your comment.

I can agree with you that it does not make really a difference between the two versions, although it leads to quite different claim sets. I would say that in the second case you even end up with more claims.

With those 6 features linked with “and/or cases” you already end up with 16 independent claims starting from a single independent claim. If each feature is a process feature, the number of independent claims increases even more, as the steps in a process are binding. If the aim is not to save fees, then what could it be?

With a succession of “or” clauses you might escape a clarity problem, but you might most probably end up with a problem of unity.

If with this independent claim with 6 features combined through “and/or” clauses you have then a series of dependent claims, containing an “or” clause either in the attachment to higher ranking claims as well as “and/or” clauses between features, it becomes more or less impossible to find out what has been actually claimed. If you do not know what is actually claimed, I am inclined to say that there is a clarity issue.

With the set of five dependent claims all referring to “any of the preceding claims”, the situation is not much better, although the claimed subject-matter might be different and with the last dependent claim combined with all preceding claim, you get the narrowest protection. This result will not be achieved with the first type with only “and/or” clauses.

It might happen that some of the embodiments will not be enabled, but it does not really matter as those claims are then not enforceable.

Leave a Reply

Your email address will not be published. Required fields are marked *