1) How is the proviso in G 2/98 [point 6.7] that "The use of a generic term or formula in a claim for which multiple priorities are claimed in accordance with Article 88(2), second sentence, EPC is perfectly acceptable under Articles 87(1) and 88(3) EPC, provided that it gives rise to the claiming of a limited number of clearly defined alternative subject-matters" to be applied?The question, similar to that raised in my last post, goes to the heart of the partial priority issue on which a significant part of the appeal depends, and on which there is now a clear discrepancy in the case law of the EPO Boards of Appeal. Although it would obviously delay resolving the issue for quite a while, a referral to the Enlarged Board would seem to me to be a necessary next step so that this issue can be properly addressed.
2) What is the test in law for a "limited number of clearly defined subject matters"?
Given that the Board of Appeal will issue a decision at the hearing, but which will not appear in writing for a while, any information on how the case goes would be gratefully received, either as comments to this post (anonymous if necessary) or by email to me at email@example.com.
UPDATE 11 October: According to a press releases here, picked up by the WSJ here, the Board of Appeal has revoked the patent. This presumably means that the Board did not consider it worth referring a question to the Enlarged Board on the partial priority issue. This could perhaps be because the patent was invalid for other reasons, but we will not know for sure until the Board issue their written decision.