1. In the decision G1/24, the Enlarged Board of appeals held that the claims are the starting point and the basis for assessing patentability of an invention under Articles 52 to 57 EPC. The description and drawings shall always be consulted to interpret the claims for this assessment and not only if the claim is unclear or ambiguous.
2.1 The question arises whether this principle is also applicable to other requirements of the EPC, in particular Article 123(2)EPC.
In this respect, on February 3rd 2026, the Board of Appeals 3.3.05 rendered an interlocutory decision in the case T0873/24 referring several questions to the Enlarged Board of Appeals.
2.2 The Board of Appeals decided to refer, inter alia, the following questions to the Enlarged Board of Appeals:
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2.(a) Does the fact that the claims are the starting point and the basis for assessing the patentability of an invention generally preclude a feature which is only disclosed in the description or the drawings of a patent from being read into the meaning of a granted claim, in particular if this leads to a restrictive reading of terms used in the claim?
2.(b) If the answer to question 2.(a) is no: is claim interpretation the result of both reading the claims and consulting the description and drawings as a unitary process and does the claim being the starting point and the basis for assessing the patentability rule out only those interpretations which can be derived from the patent as a whole but would clearly contradict the general technical understanding of the terms used in the claim?
3.(a) When assessing compliance with Article 123(2) EPC, must a term used in a claim be assessed against all interpretations that make technical sense to the skilled reader on the basis of the claim alone?
3.(b) If the answer to question 3.(a) is no: is it sufficient that only the interpretations of the subject-matter of the claim established against the background of the patent specification as a whole are directly and unambiguously derivable from the application as filed?
3. Third parties are given the opportunity by the Enlarged Board of Appeals to comment on the case until November 30, 2026.
4. The President of the EPO has decided that proceedings before the examining and opposition divisions should continue while the above case is pending.
5. More information is available at: https://www.epo.org/en/legal/official-journal/2026/07/a37 and https://www.epo.org/en/legal/official-journal/2026/06/a31.
This IP Alert is for information purposes only and does not constitute legal advice.