Communication from the Enlarged Board of Appeal concerning case G 3/14

In accordance with Article 112(1)(a) EPC, Technical Board of Appeal 3.2.08 has referred the following points of law to the Enlarged Board of Appeal with interlocutory decision of 2 April 2014 in case T 373/12:

1. Is the term "amendments" as used in decision G 9/91 of the Enlarged Board of Appeal (see point 3.2.1) to be understood as encompassing a literal insertion of (a) elements of dependent claims as granted and/or (b) complete dependent claims as granted into an independent claim, so that opposition divisions and boards of appeal are required by Article 101(3) EPC always to examine the clarity of independent claims thus amended during the proceedings?

2. If the Enlarged Board answers Question 1 in the affirmative, is then an examination of the clarity of the independent claim in such cases limited to the inserted features, or may it extend to features already contained in the unamended independent claim?

3. If the Enlarged Board answers Question 1 in the negative, is then an examination of the clarity of independent claims thus amended always excluded?

4. If the Enlarged Board comes to the conclusion that an examination of the clarity of independent claims thus amended is neither always required nor always excluded, what then are the conditions to be applied in deciding whether an examination of clarity comes into question in a given case?

The text of the referral in English is available on the EPO website under http://www.epo.org/law-practice/case-law-appeals/pdf/t120373ex1.pdf

The Enlarged Board of Appeal considering the referral will be composed as follows: W. van der Eijk (Chairman), K. Garnett, H. Meinders, U. Oswald, O. Spineanu-Matei, M.-B. Tardo-Dino, G. Weiss.

Third parties are hereby given the opportunity to file written statements in accordance with Article 10 of the Rules of Procedure of the Enlarged Board of Appeal (OJ EPO 2007, 303 ff) in one of the official languages of the EPO (English, French or German).

To ensure that any such statements can be given due consideration they should be filed by the end of August 2014 with the Registry of the Enlarged Board of Appeal, quoting case number G 3/14.

Each statement should also be accompanied by a list of cited documents and copies on paper or, preferably, CD/DVD of any such documents not previously filed.

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