The German Federal Patent Court (BPatG) has decided in the nullity action “Liposuction device” (4 Ni 34/12(EP)), that a nullity action supported by an inadmissible broadening of the disclosure of the application with an affected European Patent according to Art. II § 6 (1) No. 3 IntPatÜG, Art. 138 (1) c) EPC will also lead to a declaration of invalidity of the patent in suit, if the inadmissible broadening consists of the affiliation of a limiting feature (improper broadening) and the owner of the patent defends the patent in suit by an addition of a corresponding disclaimer.

However, a German Patent could be defended by such a disclaimer. For the justification the BPatG refers to Art. 123 (2) and (3) EPC, since the limiting feature is not originally disclosed in the application and an elimination of the limiting feature of a claim by a disclaimer leads to an extension of the scope of protection.