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Guidelines for Examination

 
 

2.3.6 Cases in limitation proceedings where the application documents as filed are no longer available

In order to verify that the limitation introduced into the claim(s) meets the requirements of Art. 123(2), the application documents as filed are the ones to be considered. In rare cases where the patent to be limited is of an older date, it may happen that the original file is destroyed, with the result that the original application documents as filed are no longer available (see Rule 147 and the Decision of the President of the EPO dated 12 July 2007, Special edition No. 3, OJ EPO 2007, J.1). Examination of Art. 123(2) has then to be based on the available published application instead of the original application documents, on the assumption that it is identical in content to the application as filed.