New questions referred to the Enlarged Board of Appeal at the European Patent Office – G 1/24

New questions have been referred to the Enlarged Board of Appeal by the Technical Board in T 439/22. The referral aims to clarify purported legal uncertainties as to whether the description and drawings should be used to interpret patent claims when assessing the patentability of an invention, and if so, under what circumstances.

The questions are referred under G 1/24 (“Heated aerosol”), and are as follows:

1. Is Article 69(1), second sentence EPC and Article 1 of the Protocol on the Interpretation of Article 69 EPC to be applied on the interpretation of patent claims when assessing the patentability of an invention under Articles 52 to 57 EPC?

2. May the description and figures be consulted when interpreting the claims to assess patentability and, if so, may this be done generally or only if the person skilled in the art finds a claim to be unclear or ambiguous when read in isolation?

3. May a definition or similar information on a term used in the claims which is explicitly given in the description be disregarded when interpreting the claims to assess patentability and, if so, under what conditions?

For more information about the referral, please see the EPO’s announcement. For further background, see the Board of Appeal’s decision that refers the questions to the Enlarged Board of Appeal.

We will be following the progress of this referral, so stay tuned for further updates. To find out more, feel free to email us at gje@gje.com.