A new Referral to the Enlarged Board of Appeal – G 1/26 (“Coated steel strips”) has been made at the EPO

After the landmark decision G1/24, which ruled that the description and drawings are always to be consulted when assessing the clarity of claim features, the question arises whether this approach is also appropriate when assessing the requirements of Art. 123(2) EPC, i.e. added subject-matter.

Technical Board of Appeal 3.3.05 has by interlocutory decision T 873/24 referred the following questions to the Enlarged Board of Appeal:

1. May a decision be considered to be “required” for the purposes of Article 112(1) EPC, if the referring Board demonstrates that the point of law in question arises out of the context of the case pending before it and, in the circumstances of the proceedings, it is reasonable for the Board to examine it and decide on it next?
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?
3. (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?
4. (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?
5. (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?

EPO’s press release from 3rd June 2026

epi is going to work on an amicus curiae brief representing the views of the profession