Abstract on Article 123(2) EPC for the decision T2488/22 of 18.02.2026

In T 2488/22 the board recalled that the established criterion for assessing whether amended subject-matter extends beyond the original disclosure is the "gold standard". Regarding claim interpretation in the context of added subject-matter, the board was of the view that, notwithstanding the reference in the second sentence of the Order in G 1/24 to the specific context of assessing patentability of an invention under Art. 52 to 57 EPC, the description and drawings also had to be consulted when interpreting the claims for the purpose of assessing compliance with other requirements of the EPC. The board observed that, first, it did not seem logical to forbid the skilled reader from consulting the description and the drawings when interpreting claims in any context other than the assessment of patentability under Art. 52 to 57 EPC. Second, and more important, the claimed subject-matter had to be interpreted in a uniform and consistent manner. It could not be the case that claims were interpreted differently when assessing patentability under Art. 52 to 57 EPC on the one hand, and when assessing compliance with any of the remaining requirements of the EPC on the other (see e.g. T 177/22 or T 1473/19). At the same time, the board noted that neither the Order nor the reasoning of G 1/24 contained any indication as to the possible outcome of consulting the description and drawings, or as to any impact such consultation might have on the interpretation of the claims. In particular, there was no basis in G 1/24 for concluding that a claim had to be interpreted in a more limited manner on the basis of features found in the embodiments of the description. The board explained that it was established case law, both before and after G 1/24, that a claim should not be interpreted on the basis of features of embodiments in the description so as to give it a meaning narrower than the wording of the claims as understood by the skilled person (see CLB, 11th edn. 2025, II.A.6.3.4). In other words, "consulting" the description and the drawings should not result in reading limitations into a claim which were not included in, or could not be derived from, the wording of the claim. The board pointed out that the skilled person read the claims (and any other parts of the application or the patent) with a mind willing to understand. Consulting the description and the drawings could result, for example, in setting the claimed subject-matter in a particular technical context. Based on this context, the skilled person could reject interpretations of the claims that did not make technical sense. What the proprietor suggested, however, was to limit the interpretation of granted claim 1 to the embodiment described in the description and the drawings, even if the wording of the claims left room for other interpretations. The board disagreed, explaining that the very essence of assessing added subject-matter consisted in determining whether it possibly comprised embodiments that were not derivable from the description, the drawings and the claims of the application as originally filed. The proprietor's argument led to a tautology: if an amended claim was interpreted so that its subject-matter was limited to what could be derived from the application as originally filed, the comparison of this claim to the content of the application as originally filed would inevitably lead to the conclusion that the claimed subject-matter did not extend beyond the content of the application as originally filed. The board observed that, in such a case, both Art. 123(2) and 100(c) EPC would be deprived of any meaning or purpose. The board concluded that the skilled person, having consulted the description and the drawings, would interpret granted claim 1 based on what could be derived from the wording of the claim, excluding any interpretation that would not make sense in the technical context of the application/patent, but including all other technically reasonable interpretations encompassed by the wording of the claim.