Published: 28 February 2017
The present referral seeks to clarify apparent contradictions between previous Enlarged Board decisions G1/03 and G2/10. The board in the current referring decision, T0437/14, considers that although at first glance the previous decisions appear to apply to different situations, it concluded that on further analysis G2/10 required Article 123(2) EPC to be applied to any amendment of a claim, without exception, and hence to disclaimers apparently permitted under G1/03 (inter alia, to deal with Article 54(3) issues and accidental anticipations under Article 54(2) EPC). The consequence of this, according to the referring board, is that any disclaimer excluding undisclosed subject matter “almost by definition” contravenes Article 123(2) EPC because what remains cannot be regarded as having been explicitly or implicitly, but directly and unambiguously disclosed.
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