Referral G1/26 to the Enlarged Board of Appeal (EBA) seeks clarification on applying the guidance given in G1/24 about consulting the description and drawing in interpreting the claims of a European Patent.
The EBA’s decision G1/24 looked to provide clarity around claim interpretation. This was particularly with regard to consulting the description and drawings when construing a claim. G1/24 ordered that:
“The claims are the starting point and the basis for assessing the patentability of an invention under Articles 52 to 57 EPC. The description and drawings shall always be consulted to interpret the claims when assessing the patentability of an invention under Articles 52 to 57 EPC, and not only if the person skilled in the art finds a claim to be unclear or ambiguous when read in isolation.”
However, how does G1/24 apply to amendments, and especially to Article 123 (2) EPC concerning added matter? As this point is open to interpretation, T873/24identified three possible approaches from the case law:
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- Consulting the description only to define the skilled person.
- That no broadening or limitation of claims be based on the patent specification.
- A holistic approach permitting broadening and or/narrowing of the interpretation in view of the patent specification.
To ensure consistent application of the law, G1/26 was recently referred to the EBA with three questions. The questions can be seen at: Referral to the Enlarged Board of Appeal – G 1/26 (“Coated steel strips”) | epo.org
The second and third questions relate to claim interpretation and added subject matter respectively, whilst the first question related to a procedural point concerning Article 112(1) EPC.
The outcome of G1/26 should provide further helpful guidance on claim interpretation. It should also give valuable clarification on how to apply the direction set out in G1/24 to Article 123(2) EPC. We will report further if and when this guidance has been issued.
Sources:
Referral to the Enlarged Board of Appeal – G 1/26 (“Coated steel strips”) | epo.org
T 0873/24 (TITANIUM-TO-NITROGEN RATIO/ArcelorMittal) of 03.02.2026
Referral to the Enlarged Board of Appeal – G 1/26 (“Coated steel strips”) | epo.org
