Just because it says EPO on the tin doesn't mean it's got EPO inside!

According to recent Federal Court of Justice (BGH) jurisprudence, amendments must be "directly and unambiguously" disclosed. This is also the case in the recent Federal Court of Justice decision "Color and Brightness Setting" (BGH X ZR 76/21) on inadmissible generalization. Nevertheless, the present decision illustrates in great detail the Senate's technology-oriented application of this principle. This represents a difference from the often photographic approach taken by the EPO. The case:

1.         The invention offers a solution for precisely setting the color of an LED light with multiple LEDs despite manufacturing-related color variations of individual LEDs.

2.         The original claim 1 contained (linguistically shortened): "...brightness and color are generated via LEDs [and/or individual LEDs are operated for light generation and as photodiodes for color measurement] and color and brightness are kept constant". In the granted version, the part in [] was deleted.

3.         In the decision, the Senate analyzes all relevant disclosure passages and determines that a) no constant maintenance without color measurement is described, and b) the "and/or" construction in the original claim 1 therefore only offers the choice between color measurement with permanently measuring LEDs or color measurement with alternately illuminating and measuring LEDs.

4.         Thus, the features "color measurement" and "cnstant maintenance" are in an inseparable connection, so that the granted claim 1 contains an inadmissible generalization.

An engineer would have put it more concisely: No regulation without measurement.

Article by Ulrich Meyle, Patent Attorney at HKW IP