In its decision “Kosmetische Zubereitung” the BPatG dealt with the introduction of a none-disclosed disclaimer in the originally filed documents in an amended claim 1. At this point it was essential that this introduction of the disclaimer which was particularly identified as such was implemented during the examination procedure.

The senate of the BPatG dealing with this matter thereby concluded in its decision that the introduction of a none-disclosed disclaimer represents an inadmissible extension. This consequently led to the rejection of the application due to an inadmissible extension. Moreover, the senate particularly clarifies that the case law of the BGH “Winkelmesseinrichtung” in which a possible introduction of a none-disclosed disclaimer during the opposition or invalidity proceedings is not applicable to the examination procedure since the examination procedure and the opposition or invalidity proceedings are separated from one another by the granting of the patent.

In the meantime, the authorized appeal against the decision of the BPatG was filed.