When “better” isn’t good enough under Art. 84 EPC

No items found.
​
September 18, 2025
No items found.
Table of contents
  • Toc Heading
  • Toc Heading

In the recent Decision T 2387/22, the Board's key message was: if you define an invention by a "relative improvement" of a known technical effect, the improvement must be expressed in "objectively verifiable" terms. Vague language like "stronger" or "fewer", unsurprisingly, won't cut it.

In this case, claim 1 of ARs 9 to 11 defined the use of a particular pigment in a flexographic ink formulation for providing: "fewer print defects, higher hiding and stronger colour and allowing a lower volume anilox".


The Board found these terms unclear because they lacked measurable parameters. Applying the above principle, it held that such wording fails Art. 84 EPC, especially when the prior art is close.
One noteworthy quote for opponents challenging ARs: "Where, as in the present case, the prior art is technically close to the claimed subject-matter, the clarity of the distinguishing features becomes all the more critical, since such proximity makes it readily apparent how vague or diffuse definitions may give rise to legal uncertainty in the assessment of patentability."


The Main Request fell for lack of inventive step, but the clarity issues around ARs 9 to 11 earned this decision a "C" distribution.

Recent Case Reports

See all Case Reports

Seriously deficient disclosure process not sufficient to reopen costs order - Cabo v MGA
08 April 2026
A High Court decision highlighting the consequences of inadequate disclosure searches under PD57AD and reaffirming that costs orders are final, even where later failures come to light.
​
UPC Court of appeal issues final decision, despite no finding on infringement at first instance
30 March 2026
In Rematec v Europe Forestry, the UPC Court of Appeal overturned the Mannheim Local Division’s revocation of the patent and, applying Article 75(1) UPCA, issued a final decision on both validity and infringement despite no infringement finding at first instance. The Court adopted a narrower, description‑led approach to claim interpretation, confirmed the patent’s validity, found infringement, and granted final remedies without referring the case back to the Court of First Instance.
​
Litigation insurance as security for costs
30 March 2026
In Syntorr v Arthrex, the UPC Court of Appeal clarified that while litigation insurance is not itself a form of security under Rule 158 RoP, it is a relevant factor when deciding whether security for costs should be ordered at all. By failing to consider the claimant’s insurance policy, the Munich Local Division wrongly exercised its discretion. The Court set aside the €2 million security order and confirmed that insurance can mitigate concerns about cost recoverability.
​