Requirement to amend description referred to EPO Enlarged Board of Appeal

The Board of Appeal (in T 697/22) has referred a number of questions relating to the European Patent Office (EPO) requirement that the applicant amend the description in line with the claims, in pending referral G 1/25. 

The first question which has been referred looks at whether, if the claims of a European patent are amended during opposition, and the amendment introduces an inconsistency between the amended claims and the description of the patent, it is necessary to adapt the description to the amended claims. A further question is focused on whether the answer would be different if the claims of a European patent application are amended during examination. This referral may bring further clarity to applicants when navigating such requirements during examination.

The Board of Appeal makes reference to the recent EPO Enlarged Board of Appeal decision G1/24 - see our article on G 1/24 here. It will be interesting to see whether G 1/24 features in the Enlarged Board’s reasoning when these questions are considered. 

Technical Board of Appeal 3.3.02 has by interlocutory decision T 697/22 referred the following questions to the Enlarged Board of Appeal (referral pending under: G 1/25 - “Hydroponics”).

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