![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
England and Wales High Court (Patents Court) Decisions |
||
|
You are here: BAILII >> Databases >> England and Wales High Court (Patents Court) Decisions >> Zipher Ltd v Markem Systems Ltd & Anor [2008] EWHC 1379 (Pat) (25 June 2008) URL: http://www.bailii.org/ew/cases/EWHC/Patents/2008/1379.html Cite as: [2008] EWHC 1379 (Pat) |
||
[New search] [Printable PDF version] [Help]
CHANCERY DIVISION
PATENTS COURT
HC07 C01551 HC07 C02890 Royal Courts of Justice Strand, London, WC2A 2LL |
||
B e f o r e :
____________________
| ZIPHER LIMITED |
Claimant |
|
| - and - |
||
| (1) MARKEM SYSTEMS LIMITED (2) MARKEM TECHNOLOGIES LIMITED |
Defendants |
____________________
Mr Richard Arnold QC and Mr Brian Nicholson (instructed by Herbert Smith) for the Defendants
Hearing dates: 17-18, 21-25 April, 6-9 May 2008
____________________
Crown Copyright ©
Mr Justice Floyd :
i) UK Patent No. 2 369 602 ("602");
ii) European Patent (UK) No. 1 317 345 ("345"); and
iii) European Patent (UK) No. 1 767 375 ("375").
i) Is Zipher's attempt to amend in breach of any undertaking it has given to the court?
ii) Do Zipher's amendments to 602 add matter?
iii) Are Zipher's amendments to 602 allowable in the exercise of any discretion retained by the court?
iv) Are any claims in the four patents in suit invalid for lack of novelty over US Patent Specification No. 4 909 648 ("Datamax")?
v) Was the information in a Markem document called "the Adkin Memorandum" made available to the public before the priority date of 602?
vi) If so, do any claims lack novelty over the Adkin Memorandum?
vii) Are any claims invalid for lack of inventive step over:
a) Datamax;
b) The information in the Adkin Memorandum;
c) US Patent Specification No. 5 490 638 ("IBM");
d) US Patent Specification No.4 093 149 ("Shroff");
e) Japanese Patent Application No. S60-211653 ("Ikenaga");
f) US Patent Specification No. 5 649 672 ("Wolff");
g) UK Patent Application No. 2 302 523 ("Markem")?
viii) Are any claims invalid for insufficiency? There are pleaded insufficiencies of three different types: classical insufficiency, Biogen insufficiency and insufficiency through ambiguity.
ix) Are any claims infringed by any of the three accused models of Markem printer?
The witnesses
Technical background
Electric motors
Stepper motors
.png)
Back emf
Pulse-width modulation
Filtering and averaging of signals
Control systems and Proportional-integral-derivative ("PID") control
Tape drives
Tension control
Tension arm systems
.png)
Q. ... …it was well known, was it not, that dancer arms, to use your terminology, could be actuated by gravity, by a constant force spring or by a variable force spring?
A. Yes, I agree with that.
Tension sensor systems
Thermal transfer printing
The patents in suit
"The requirements in terms of ribbon acceleration, deceleration, speed and positional accuracy of high speed transfer printers is such that the known drive mechanisms have difficulty delivering acceptable performance with a high degree of reliability. Similar constraints also apply in applications other than high speed printers. Accordingly it is an object of the present invention to provide a tape drive which can be used to deliver printer ribbon in a manner which is capable of meeting the requirements of high speed production lines, although the tape drive of the present invention may of course be used in other applications where similar high performance requirements are demanded."
"the known arrangements drive only the spool on to which ribbon is taken up … and rely on some form of "slipping clutch" arrangement on the spool from which ribbon is drawn … to provide a resistive force so as to ensure the ribbon is maintained in tension ….."
"A tape drive in accordance with the present invention relies upon both the motors which drive the two tape spools to drive the tape during tape transport. Thus the two motors operate in push-pull mode. This makes it possible to achieve very high rates of acceleration and deceleration. Tension in the tape being transported is determined by control of the drive motors and therefore is not dependent upon any components which have to contact the tape between the take-up and supply spools. Thus a very simple overall mechanical assembly can be achieved. Given that both motors contribute to tape transport, relatively small and therefore inexpensive and compact motors can be used."
"The described printer arrangement provides a number of very significant advantages. Firstly, it is possible to use the same apparatus for both continuous and intermittent printing. Conversion of a production line from one form of printing to another does not therefore mean that new printers must be purchased. Secondly, by making relatively minor modifications involving only one additional component (the alternative print head carriages of Figures 10 and 11) the same apparatus can be used for both left hand and right hand applications, using these terms in the sense of Figure 2 (left hand) and Figure 12 (right hand). Thirdly, ribbon replacement is a simple matter given that when in the docked position the print head 4 is automatically pulled back away from the peel roller 33 so as to provide a wide track into which a replacement printer ribbon carried on a cassette can be inserted."
"The advantages described with references to Figures 13 to 16 can only be achieved if the print ribbon can be positioned relative to the substrate and the print head with great accuracy. The conventional approach to achieving accurate control of tape acceleration, deceleration, speed and position has relied upon a capstan roller positioned between feed and supply spools, but the present invention relies upon a completely different approach, that is the accurate control of the drive applied to the stepper motors … which drive the ribbon spools. The stepper motors operate in push-pull bi-directional mode, that is if the tape is travelling in one direction between the spools both stepper motors are driven in that direction, and conversely when the ribbon is being driven in the opposition direction both stepper motors are driven in that opposite direction. Coordination of the drive to the two stepper motors requires knowledge of the diameters of the spools and this is achieved using the light emitting devices…."
.png)
"Given knowledge of the spool diameters, the spools can be driven in push-pull mode so as to achieve high rates of acceleration and deceleration by appropriate control of the speeds of rotation of the two stepper motors. Tension in the ribbon between the two spools must however b[e] closely controlled to avoid the tension becoming too high (resulting in over tightening of the ribbon on the spools or even ribbon breakage) or the tension becoming too low (resulting in loss of positional control as a result of the ribbon becoming slack). To avoid this occurring, changes in spool diameters over time are monitored by reference to the stepper motors and tension in the ribbon is directly monitored by reference to the current drawn by the stepper motors."
x = N/V
where x is the calibration factor for the motor at a given step rate
V is the average measured motor operation value at the given step rate
N is a constant normalisation or scaling factor.
.png)
.png)
"temperature variations which will affect the measured values of V1 and V2 will generally affect both motors to the same extent"
.png)
where ω1 and ω2 are the respective angular velocities of the spools.
"If the derived value of t is too high (above a predetermined limit), then a small step adjustment can be made to either or both of the motors to add a short section of ribbon to the length of ribbon between the spools. If the derived value of t is too low (below a different predetermined limit), then a short section of ribbon can be removed from the length of ribbon between the spools. The control algorithms used to determine the correction amounts of ribbon added to or removed from the length of ribbon between the spools may be of conventional form, for example the algorithms known as proportional integral derivative control algorithms (PlD control). The algorithms make it possible to compare the measured tension t with predetermined upper and lower limits (the so-called deadband) and, if the measured tension is outside these limits, the difference between the measured tension t and a "nominal demand" tension which is set at a level between the upper and lower limits may be calculated, the result of that calculation being regarded as an error "signal". This error "signal" is then mathematically processed through the PID algorithms, which include a proportional gain constant, as well as integral and derivative factors. The mathematical processing results in a "correction" amount of ribbon that needs to be added to or removed from the ribbon path between the spools during the next ribbon feed. This addition or removal of ribbon maintains ribbon tension within acceptable limits."
The 375 Patent
.png)
The claims
| Claim 1. | |
| (a) | A tape drive comprising two stepper motors, |
| (b) | two tape spool supports on which spools of tape may be mounted, each spool being drivable by a respective one of said stepper motors, |
| (c) | and a controller for controlling the energisation of the motors such that the tape may be transported in at least one direction between spools mounted on the spool supports, |
| (d) | wherein the controller is operative to energise both motors to drive the spools of tape in the direction of tape transport |
| (e) | to monitor tension in a tape being transported between spools and to control the motors to maintain the monitored tension between predetermined limits. |
| Claim 2. | |
| (a) | A tape drive comprising two stepper motors, |
| (b) | two tape spool supports on which spools of tape may be mounted, each spool being drivable by a respective one of said stepper motors, |
| (c) | and a controller for controlling the energisation of the motors such that the tape may be transported in at least one direction between spools mounted on the spool supports, |
| (d) | wherein the controller is operative to energise both motors to drive the spools of tape in the direction of tape transport |
| (e) | and the controller is configured to implement a control algorithm to calculate a length of tape to be added or subtracted from a tape extending between the spools in order to maintain tension in the tape between predetermined limits and to control the motors to add or subtract the calculated length of tape to or from the tape extending between the spools. |
| Claim 3. | |
| (a) | A tape drive comprising two stepper motors, |
| (b) | two tape spool supports on which spools of tape may be mounted, each spool being drivable by a respective one of said stepper motors, |
| (c) | and a controller for controlling the energisation of the motors such that the tape may be transported in at least one direction between spools mounted on the spool supports, |
| (d) | wherein the controller is operative to energise both motors to drive the spools of tape in the direction of tape transport |
| (e) | And tension in the tape being transported is determined by control of the stepper motors |
| Claim 4 | |
| (a) | A tape drive according to claim 3 |
| (b) | wherein the controller is operative to monitor tension in a tape being transported between spools mounted on the spool supports |
| (c) | and to control the motors to maintain the monitored tension between predetermined limits |
| Claim 6. | |
| (A tape drive according to any preceding claim): incorporated in a thermal transfer printer. |
| Claim 3. | |
| A tape drive according to claim 1 or 2 (n.b. claim 1 of '375 is the same as claim 1 of '602 as set out above and claim 2 adds the requirement that the controller be arranged to control the motors to transport tape in both directions), wherein |
|
| (a) | means are provided to monitor the power supplied to at least one of the motors (14, 15) and to calculate an estimate of tape tension from the monitored power. |
| Claim 33. | |
| A printing apparatus incorporating a tape drive according to any one of claims 1 to 29, the printing apparatus comprising |
|
| (a) | A housing (1), |
| (b) | a printhead (4) mounted on a printhead support assembly which is displaceable relative to the housing in a direction parallel to a print ribbon path along which a ribbon (6) is driven by the tape drive, |
| (c) | a first drive mechanism for displacing the printhead support relative to the housing (1), |
| (d) | a roller (30) which in use supports a substrate (13) to be printed on the side of the ribbon path remote from the print head (4), |
| (e) | a second drive mechanism for displacing the printhead (4) relative to the printhead support assembly to a printing position in which a portion of the printhead bears against the roller (30) or any substrate or ribbon interposed between the printhead and roller, and |
| (f) | a controller for adjusting the first drive mechanism to adjust the angular position of the printhead (4) relative to the rotation axis of the roller (30). |
The skilled addressee
Construction
Construction: "controller is operative ... to monitor tension in a tape being transported"
Construction: "to control the motors to maintain the monitored tension between predetermined limits"
"then a small step adjustment can be made to either or both of the motors ….."
"Tension in the tape being transported is determined by control of the drive motors and therefore is not dependent on any components which have to contact the tape between the take-up and supply spools" .
Construction: Predetermined limits
Construction: control algorithm to calculate a length of tape
Construction - "Controller"
Construction "angular position"
Zipher's application to amend 602
The Undertaking Point
Facts
"means are provided to monitor the power supplied to at least one of the motors and to calculate an estimate of tape tension from the monitored power."
THE JUDGE: Yes, sorry, claim 1 -- then broadening up to claim 1 they are going to cover something he says that was invented at Markems.
MR. SPECK: That is the problem and that is why we have made it quite [clear?] again and again that if my Lord thinks our claim is too broad we would be prepared to go back to the narrow ones.
THE JUDGE: He will probably say that if I leave you with broad claim you will try and close him down on that bit.
MR. SPECK: No, he will not.
MR. SPECK: My Lord, I have made our position plain on that. If my Lord thinks we should go back to four or five then we will go back.
[THE JUDGE] There may be other procedural eventualities. However, we are leadenly clubbing it out.
MR. SPECK: No, we are not. I have made it absolutely plain. Our inventor thinks claim 5 is the crucial, the clever bit. We would be more than happy to drop down to claim 5 if my Lord thinks that the claim is too wide. The difficulty is that validity and so forth is not directly a matter for these proceedings but we can see the sense in my Lord taking a view on that and saying we are entitled to claim 5 in the subsidiary claims and we keep a patent as it stands on that. We have always made our position clear.
THE JUDGE: I can see they will turn around and shut you down. Then if I let you get on with the broad claims you will have a go at them.
MR. SPECK: No.
THE JUDGE: There is an undertaking coming.
MR. SPECK: I have already made that plain. What would we have a go at them with on the broad claims? There is no evidence they want to do Adkin, there is absolutely nothing that we can have a go at them on. What does my Lord have in mind because there is nothing?
THE JUDGE: In the way of a commercial product at the moment.
MR. SPECK: No. This is completely contrived. There is no suggestion that they want to do whatever it is they say is shown in Adkin. My Lord must appreciate that.
THE JUDGE: All right.
MR. SPECK: I am not standing here wanting to get away with claim 1 so that I can have a go at them. I am defending an application by Markem whereby they claim to be entitled to my patent and that claim. I would hardly be saying to my Lord that we would be perfectly happy with claim 5 if that was my aim. My Lord, appreciates ---- There is one thing that those behind me are very anxious that my Lord appreciates, and that is this point about the width of the ribbon drive claims. Again, I repeat, if my Lord thinks they are too wide and I can quite see how my Lord would say, that we would be perfectly happy to give an undertaking to my Lord, as I indicated in opening -- this is only an application so it is easily done on that one -- we could give an undertaking not to prosecute the wider claims. We can come back to either claim 4 or 5.
THE JUDGE: Why do you not do it any way, out of an abundance of caution?
MR. SPECK: I will just take some instructions.
MR. SPECK: My Lord will recall me asking about claims 1-4, the ribbon drive, yesterday.
THE JUDGE: You have had an opportunity ----
MR. SPECK: I have. I am in a position to accept my Lord's invitation out of an abundance of caution.
THE JUDGE: It was a suggestion.
MR. SPECK: My Lord's suggestion, that out of an abundance of caution we would undertake to my Lord not to prosecute a claim over and above claim 5 (which is actually claim 1) plus claim 4, plus claim 5; all the integers are put together. My learned friend complained that he wanted it written down on a piece of paper. We have done so, although it is straightforward ----
…MR. SPECK: We have set it out on this piece of paper in the three sections, so one can see where the wording comes from. The top is claim 1, the middle bit is the wording from claim 5, obviously one takes out the words, "a tape drive according to claims, 1, 2 or 3" and we just have the "wherein". Likewise, on claim 5 "wherein" is the bottom part of this piece of paper. We will, out of an abundance of caution, give my Lord an undertaking. We are concerned on our side to repeat that it is rather concerning yesterday that my Lord thought these wider claims could be asserted against a commercial embodiment of Markem's. There is absolutely no evidence that they have -- for instance, that they are doing the Adkin machine, so ----
14 THE JUDGE: Yes.
MR. SPECK: Perhaps, or that they even want to do that. That is not as we have perceived the evidence at the moment; contrary for our position ----
THE JUDGE: Mr. Speck, that is fine. It is just that, being a judge, I see in every case hidden agendas, or rather I do not see them but I feel hidden agendas.
MR. SPECK: It is something that my Lord said yesterday which made it look as though you thought that both of us were trying to assert these claims against each other after judgment.
THE JUDGE: It is certainly true one way, or the possibility ---
MR. SPECK: It certainly is, but we say not the other.
MR. SPECK: My friend has asked me to clarify the nature of the offer and there was another point which occurred to me when we were looking at the claims. Of course our offer to narrow the apparatus claim will be mirrored in the method claim which my Lord has just seen.
THE JUDGE: Yes, the one tagged at the end.
MR. SPECK: Yes, so that covers both. I just wanted to make that plain. The other point is that this is an unconditional offer made to you, my Lord, to the court; it is not subject to my friend accepting it. That is what we will do to the claims should we succeed and we maintain our patent in our name. It is obviously subject to my friend's argument that it is not open to us to throw the swag in the river, as he puts it. Apart from that we will do it if we successfully maintain the patent in our name. It is not an offer to my friend to accept or reject in that way, it is an offer that we make to the court. (emphasis supplied)
THE JUDGE: If you are successful.
MR. SPECK: Absolutely. My friend has asked me to clarify that. If the patent remains in our name we will narrow claim 1 to introduce ----
THE JUDGE: I [had] rather understood that. I think we have to go on. I do not think there is any possibility of ----
MR. SPECK: He is not going to accept it.
THE JUDGE: No. Then do not let us waste time on it. I have your undertaking.
"In relation to claims 1-4, I am of the view that their subject matter had been devised by one or more of the named inventors at MTL. I say this for essentially the same reasons as I have given for '326. It was in respect of this application that during closing speeches, Mr Speck unconditionally offered to limit claim 1. His proposal was to combine existing claims 1, 4 and 5 ('the clever bit') so as to create a new claim 1 leaving claims 2 and 3 still subsidiary to it. The development did not attract Mr Watson but for reasons which will become apparent, it was, I believe, a realistic response to the evidence. "
"179. The learned Judge should have rejected Markem's claim to entitlement to those claims and accepted Zipher's offer to drop them from the application by amending down to claim 5.
214. Zipher's appeal should be allowed. Claims 1 to 4 of Ribbon Drive (602) are not derived from anything done at Markem. Zipher are willing to delete them and confine its claims to claim 5…."
"The question that arises of course is if you divine an inventive concept and then you find that certain claims have gone way beyond it, that may be a circumstance when you, the comptroller, say those claims must go. That is what I am coming down to. We made an offer down below that claims 1 to 4 should be deleted. That was our submission, and that is not something I resile from."
In this passage, the reference is to an offer, but later on Mr Thorley QC described it as an undertaking that was given:
"The fact that we now accept, having gone through Datamax, that there may be no validity in claims 1 to 3, and we have accepted claim 4 can go as well because claim 5 is really what circumscribes what we want is neither here nor there, that undertaking was given below and it remains."
"actually what we have held is that it [i.e. 602] is his [i.e. Zipher's] patent application, it is no business of yours and that is the end of it. The concession by Mr Thorley is really a concession by Mr Thorley and no more."
The rival submissions
"…Zipher voluntarily, upon competent professional advice, after taking time for reflection and with a view to securing a tactical advantage in the entitlement proceedings, gave a binding undertaking to the Court to amend '602A down to Claim 5 from which it has never sought to be released and never has been released."
".. [n]o undertaking was ever given and accepted by the Court. There was just a proposal which was not accepted by HHJ Fysh QC as the appropriate way to go. Before the Court of Appeal the whole foundation for any such undertaking fell away by the decision on the main issue of the correct approach to entitlement and Zipher's complete victory on that issue. That is why no undertaking appears in any Order."
Discussion
Added Matter
Law
"I think the test of added matter is whether a skilled man would, upon looking at the amended specification, learn anything about the invention which he could not learn from the unamended specification"
"96. The test for added matter was explained by Aldous J in Bonzel v Intervention Ltd [1991] RPC 553 at 574:
'The decision as to whether there was an extension of disclosure must be made on a comparison of the two documents read through the eyes of a skilled addressee. The task of the Court is threefold:
(a) To ascertain through the eyes of the skilled addressee what is disclosed, both explicitly and implicitly in the application.
(b) To do the same in respect of the patent as granted.
(c) To compare the two disclosures and decide whether any subject matter relevant to the invention has been added whether by deletion or addition.
The comparison is strict in the sense that subject matter will be added unless such matter is clearly and unambiguously disclosed in the application either explicitly or implicitly.'
97. A number of points emerge from this formulation which have a particular bearing on the present case and merit a little elaboration. First, it requires the court to construe both the original application and specification to determine what they disclose. For this purpose the claims form part of the disclosure (s.130(3) of the Act), though clearly not everything which falls within the scope of the claims is necessarily disclosed.
98. Second, it is the court which must carry out the exercise and it must do so through the eyes of the skilled addressee. Such a person will approach the documents with the benefit of the common general knowledge.
99. Third, the two disclosures must be compared to see whether any subject matter relevant to the invention has been added. This comparison is a strict one. Subject matter will be added unless it is clearly and unambiguously disclosed in the application as filed.
100. Fourth, it is appropriate to consider what has been disclosed both expressly and implicitly. Thus the addition of a reference to that which the skilled person would take for granted does not matter: DSM NV's Patent [2001] RPC 25 at [195]-[202]. On the other hand, it is to be emphasised that this is not an obviousness test. A patentee is not permitted to add matter by amendment which would have been obvious to the skilled person from the application.
101. Fifth, the issue is whether subject matter relevant to the invention has been added. In case G1/93, Advanced Semiconductor Products, the Enlarged Board of Appeal of the EPO stated (at paragraph [9] of its reasons) that the idea underlying Art. 123(2) is that that an applicant should not be allowed to improve his position by adding subject matter not disclosed in the application as filed, which would give him an unwarranted advantage and could be damaging to the legal security of third parties relying on the content of the original application. At paragraph [16] it explained that whether an added feature which limits the scope of protection is contrary to Art 123(2) must be determined from all the circumstances. If it provides a technical contribution to the subject matter of the claimed invention then it would give an unwarranted advantage to the patentee. If, on the other hand, the feature merely excludes protection for part of the subject matter of the claimed invention as covered by the application as filed, the adding of such a feature cannot reasonably be considered to give any unwarranted advantage to the applicant. Nor does it adversely affect the interests of third parties.
102. Sixth, it is important to avoid hindsight. Care must be taken to consider the disclosure of the application through the eyes of a skilled person who has not seen the amended specification and consequently does not know what he is looking for. This is particularly important where the subject matter is said to be implicitly disclosed in the original specification."
"If the specification discloses distinct sub-classes of the overall inventive concept, then it should be possible to amend down to one or other of those sub-classes, whether or not they are presented as inventively distinct in the specification before amendment. The difficulty comes when it is sought to take features which are only disclosed in a particular context and which are not disclosed as having any inventive significance and introduce them into the claim deprived of that context. This is a process sometimes called 'intermediate generalisation'."
Added matter: "control algorithm"
Added matter "no monitoring of tape tension"
"Preferably the controller is arranged to control the motors to transport tape in both directions between the spools. The motors may both be stepper motors and the controller may be operative to measure tension in a tape being transported between spools mounted on the spool support and to control the motors to maintain the monitored tension between predetermined limits."
"Tension in the tape being transported is determined by control of the drive motors and therefore is not dependent upon any components which have to contact the tape between the take-up and supply spools."
Added matter: control of tension
Amendment: Discretionary objections
Law
"The discretion as to whether or not to allow amendment is a wide one and the cases illustrate some principles which are applicable to the present case. First, the onus to establish that amendment should be allowed is upon the patentee and full disclosure must be made of all relevant matters. If there is a failure to disclose all the relevant matters, amendment will be refused. Secondly, amendment will be allowed provided the amendments are permitted under the Act and no circumstances arise which would lead the court to refuse the amendment. Thirdly, it is in the public interest that amendment is sought promptly. Thus, in cases where a patentee delays for an unreasonable period before seeking amendment, it will not be allowed unless the patentee shows reasonable grounds for his delay. Such includes cases where a patentee believed that amendment was not necessary and had reasonable grounds for that belief. Fourthly, a patentee who seeks to obtain an unfair advantage from a patent, which he knows or should have known should be amended, will not be allowed to amend. Such a case is where a patentee threatens an infringer with his unamended patent after he knows or should have known of the need to amend. Fifthly, the court is concerned with the conduct of the patentee and not with the merit of the invention."
" 75.-(1) In any proceedings before the court or the comptroller in which the validity of a patent may be put in issue the court or, as the case may be, the comptroller may, subject to section 76 below, allow the proprietor of the patent to amend the specification of the patent in such manner, and subject to such terms as to advertising the proposed amendment and as to costs, expenses or otherwise, as the court or comptroller thinks fit." (emphasis added)
"(5) In considering whether or not to allow an amendment proposed under this section, the court or the comptroller shall have regard to any relevant principles applicable under the European Patent Convention."
"(1) The conditions under which a European patent application or a European patent may be amended by proceedings before the European Patent Office are laid down in the Implementing Regulations. In any case, an applicant shall be allowed at least one opportunity of amending the description, claims and drawings of his own volition."
"(2) A European patent application or European patent may be amended in proceedings before the European Patent Office in accordance with the Implementing Regulations."
"(2) After receiving the European search report and before receipt of the first communication from the Examining Division, the applicant may, of his own volition, amend the description, claims and drawings,
(3) After receipt of the first communication from the Examining Division the applicant may, of his own volition, amend once the description, claims and drawings provided that the amendment is filed at the same time as the reply to the communication. No further amendment may be made without the consent of the Examining Division."
"57(1) The Opposition Division shall communicate the opposition to the proprietor of the patent and shall invite him to file his observations and to file amendments, where appropriate, to the description, claims and drawings within a period to be fixed by the Opposition Division.
57A Without prejudice to Rule 87, the description, claims and drawings may be amended, provided that the amendments are occasioned by grounds for opposition specified in Article 100, even if the respective ground has not been invoked by the opponent."
"As already mentioned, the boards of appeal have derived in particular from R. 57(1) EPC the princi