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Case Law of the Boards of Appeal

 
 
2. Parts of the application relevant for assessing sufficiency of disclosure

Sufficiency of disclosure within the meaning of Art. 83 EPC must be assessed on the basis of the application as a whole - including the description and claims - (see leading decisions T 14/83, OJ 1984, 105; and also T 169/83, OJ 1985, 193) and not of the claims alone (see e.g. T 202/83, T 179/87 of 16.1.1990, T 435/89, T 82/90, T 126/91). The drawings must be considered as ranking equally with the other elements of the application when considering whether the requirements of Art. 83 EPC (and Art. 84 EPC) have been satisfied (see T 169/83, OJ 1985, 193; T 308/90 and T 818/93).

In T 32/84 (OJ 1986, 9) it was pointed out that the fact that certain elements of an invention essential to its operation were not referred to explicitly either in the claims, or in the relevant portion of the description nor shown in the drawing of the invention as claimed did not necessarily mean that the application did not disclose the invention in a manner sufficiently clear and complete for it to be carried out by a person skilled in the art as required by Art. 83 EPC 1973. This decision was cited, inter alia, in T 391/91, T 830/02 and T 25/09.

According to established case law, substantially any embodiment of the invention, as defined in the broadest claim, must be capable of being realised on the basis of the disclosure. This implied in particular that an objection of insufficiency could be raised against the subject-matter of any claim, independent or dependent (R. 29(3) EPC 1973, now R. 43(3) EPC). From a legal point of view it was therefore irrelevant whether or not the feature objected to was essential or to what degree the scope of protection conferred by the patent depended on the claim in question (T 226/85 (OJ 1988, 336), cited in many decisions, for example, T 1011/01 and T 1129/09).