EP 115 revoked.
Added subject matter (Article 138(1)(c) EPC): No parts of the disclosure that would show the skilled person a preferred embodiment, in which the mouthpiece is affixed to a second end of the fluid storage compartment without enclosing the fluid storage compartment.
Court may amend the patent, independent from auxiliary request (Article 65(3) UPCA). Independent of an application to amend the patent as may be filed by the patent proprietor (R 50 (2) RoP) the Court, according to Art. 65 (3) UPCA, limits the patent by a corresponding amendment of the claims and revokes it (only) in part.
Article 65(3) UPCA only pertains to the granted not to an application to amend the patent. No obligation to the Court to evaluate, if an application to amend the patent filed by the patent owner can be allowed in part. Within an application to amend the patent a certain claim set is either allowable (as such; the complete claim set proposed) or not. Defendant’s request is unclear and for this reason unallowable. Defendant did not file any particular claim-sets that would indicate to the Court, which combinations of claims the Defendant would want the Court to examine under request (2) d. in which order.
