I'm doing some exercises from the EPO and struggle at this one:
In opposition proceedings a patent proprietor has proposed amendments to claims 1, 3 and 4 of its patent to overcome issues of novelty and inventive step. The proprietor has also noted a problem with the clarity of claim 2 and has additionally proposed an amendment to this claim. Is the amendment of claim 2 permitted?
The answer is:
The correct answer is 2. Amendment of claim 2 is not permitted because the amendment is not occasioned by a ground for opposition (since clarity is not a ground for opposition as specified by Article 100 EPC) (Rule 80 EPC, implementing Article 101(1) EPC).
I don't get this. When I look at Article 100:
(b) the European patent does not disclose the invention in a manner sufficiently clear and complete for it to be carried out by a person skilled in the art;
it should be amendable. Going further to Rule 80:
Without prejudice to Rule 138, the description, claims and drawings may be amended, provided that the amendments are occasioned by a ground for opposition under Article 100, even if that ground has not been invoked by the opponent.
for me it reads like 100 b) is a reason to amend claim 2 due to Rule 80? Having a look at Article 101 (1):
If the opposition is admissible, the Opposition Division shall examine, in accordance with the Implementing Regulations, whether at least one ground for opposition under Article 100 prejudices the maintenance of the European patent. During this examination, the Opposition Division shall invite the parties, as often as necessary, to file observations on communications from another party or issued by itself.
does not bring up any reason against it, at least not from my understanding. Though I don't understand the sense of Article 101 (1) in this context, here.