Fatal comma error: EPO nullifies Boeing communication patent

It was a small punctuation mark with major repercussions. The EPO Board of Appeal has nullified a Boeing patent due to the inconsistent placement of a comma in the filing of the patent. This led to an ambiguous interpretation of a claim.

7 April 2021 by Konstanze Richter

Airbus successfully attacked at the EPO a Boeing patent protecting a method for handling aircraft communications. ©LEDOMSTOCK/ADOBE STOCK

The US aerospace company Boeing and its European competitor Airbus have been fighting at the EPO for almost nine years. The disputed Boeing patent EP 1 798 872 protects a method for handling aircraft communications.

The technology uses various transmission networks to communicate flight routes and other data. Not all transmission channels are always active. The system works with a preference list from which it identifies the network that is currently available.

Hélène Stankoff

The patent was granted by the EPO in 2011; in May 2012 Airbus filed an opposition against the granting. In March 2016, the opposition division of the EPO revoked the patent and Boeing filed an appeal. The Board of Appeal 3.5.03 now dismissed this appeal (case-ID: T 1127/16).

The question at issue was whether a feature of the claim 1 infringes Article 123(2) EPC. The claim contains three sub-features which are repeated word-for-word in an auxiliary request. But this time the first two features were separated by a comma, whereas number two and three were included in the same clause. This results in a different interpretation of the claim to that in the patent claim originally filed.

The patent holder argued that, in case of ambiguity, it is necessary to interpret the claims in the light of the description and drawings. The Board of Appeal, however, rejected this.

It stated that the description and the drawings have not automatically to be consulted when an ambiguous feature occurs in the claim, or where the claim as a whole includes one or more inconsistencies. According to the Board, the claim should essentially be read and interpreted on its own merits.

Long standing relationships

Boeing relied on Witte Weller & Partner. The Stuttgart-based patent attorney firm frequently works for the US aerospace company. In the current case, however, the team only represented the client in the opposition proceedings. According to the EPO register, the Dutch law firm Arnold & Siedsma filed the application on behalf of Boeing.

In addition to prosecution and filing work, Witte Weller & Partner in Germany often supports lawyers in infringement cases before the civil courts with its technical expertise – especially in mechanical patents, such as for Sony against Virtual Paper Licensing, or medical devices, for instance the dispute between Brahms and Radiometer.

Christian Gembruch

Airbus, which is based in Toulouse, has been working with Santarelli for patent prosecution and filing for years. Depending on the technology involved, in addition to patent attorney Hélène Stankoff, name partner Luc Santarelli and patent attorney François Lepelletier-Beaufond are also active for the European aerospace company in other cases.

Previously a pure patent attorney firm, Santarelli recently merged with two other French firms, creating the mixed Santarelli Group.

For Boeing
Witte Weller & Partner (Stuttgart): Christian Gembruch, Mark Wegener

For Airbus
Santarelli (Paris): Hélène Stankoff

European Patent Office, Technical Boards of Appeal, Board 3.5.03
Kemal Bengi-Akyürek (chairman), Timothy Snell, Jean Geschwind

(This article was updated on 09.04.2021.)