T 1149/97 (Fluid transducer/SOLARTRON) of 07.05.1999

1. Without opposition, issue of a decision to grant a European patent normally constitutes a "cut-off" point for making amendments to the application documents in the European proceedings. If an opposition has been filed, "cut-off" effects due to the grant of a patent may be seen in the restrictions imposed on further amendments to the patent specification by Rules 57a and 87 and Article 123(3) EPC.

2. Although Article 123(3) EPC only addresses the claims of the European patent, amendments to the description and the drawings may also extend the protection conferred in accordance with Article 69(1) EPC.

3. If, in view of Articles 84 and 69 EPC, the application documents have been adapted to amended claims before grant, thereby deleting part of the subject-matter originally disclosed in order to avoid inconsistencies in the patent specification, as a rule subject-matter deleted for this reason can neither be reinserted into the patent specification nor into the claims as granted without infringing Article 123(3) EPC. An analogous finding applies to subject-matter retained in the patent specification during such adaptation for reasons of comprehensibility, but indicated as not relating to the claimed invention (see point 6. of the reasons).