Press Communiqué of 3 September 2026 concerning decision G 1/25 (“Hydroponics”) of the Enlarged Board of Appeal
The Enlarged Board of Appeal today issued its decision in case G 1/25. It concluded that an inconsistency between the claims and the description requires adaptation of the description where, because of that inconsistency, a requirement of the EPC is not complied with.
Background
The referral by Technical Board of Appeal 3.3.02 in T 697/22 of 29 July 2025 concerned the question whether, for a patent to comply with the requirements of the EPC, the description must be adapted to remove an inconsistency introduced by an amendment of the claim. The Referring Board had considered that an amendment to claim 1 had introduced such an inconsistency between the definition of the binder in that claim and statements in paragraphs [0013] and [0016] of the description defining binders in a broader way.
Two approaches regarding the adaption of the description were identified: According to a first line of case law, there was a legal basis in the EPC, in particular Article 84 EPC, that required the description to be consistent with amended claims while according to a second line of case law, an adaption to remove an inconsistency was not required since Article 84 EPC was assessed without reference to the description.
Key considerations
The Enlarged Board held that the necessity to adapt the description or any drawings is not a consequence of the existence of an inconsistency as such, but arises only where, and to the extent that, the inconsistency leads to non-compliance with Articles 52 to 57, 76(1), 83, 84, 123(2) or 123(3) EPC. An inconsistency having no such legal effect need not be removed or neutralised. The EPC does not require purely formal concordance between the claims and the description.
The Enlarged Board did not endorse the second line of case law according to which the requirements of Article 84 EPC must be assessed without regard to the description and drawings. Rather, the following principles for claim interpretation apply not only when assessing patentability under Articles 52 to 57 EPC as set out in G 1/24 but also where the assessment of Article 84 EPC requires the meaning of the claims to be determined:
- The description and drawings must always be consulted (taken into account/used) to interpret the claims, and not only if the person skilled in the art finds a claim to be unclear or ambiguous when read in isolation.
- Claim interpretation is the result of reading the claims, the description and any drawings as a unitary process (“holistic approach”) to determine the meaning which the skilled person gives to the claim wording in the context of the application or patent as a whole.
- The description and the drawings may affect the meaning which the skilled person attributes to the claim wording, but they cannot be used to impose on the claim a limitation or expansion for which the claim wording provides no basis.
- The skilled person will read terms in the claim in the sense of a definition found in the description, taking into account both the broadening and limiting aspects as long as the definition is technically reasonable and complies with the overall teaching of the claims, description and drawings.
For the purposes of the referral, the Enlarged Board considered that an inconsistency between the claims and the description exists only where one or more statements in the description, including any drawings, suggest an understanding of a claim that is incompatible with its apparent meaning and that incompatibility cannot readily be resolved by applying the aforementioned principles of claim interpretation. Such an inconsistency may affect compliance with Article 84 EPC where, for example, it leaves it unclear whether information, examples, subject-matter or embodiments fall within the scope of the claim.
The Enlarged Board further stated that this approach is not contingent on the existence of amendments to the claims, but reflects general principles governing the determination of the meaning of the claims under the EPC. Moreover, it applies in the same way in examination, opposition and the corresponding appeal proceedings.
Order
The order of the Enlarged Board of Appeal reads as follows:
If the claims of a European patent, or patent application, are amended during proceedings before the departments of the EPO, or in appeal proceedings, and the amendment introduces an inconsistency between the amended claims and the description, including any drawings, of the patent, or application, and because of that inconsistency Articles 52 to 57, 76(1), 83, 84, 123(2) or 123(3) EPC are not complied with, it is necessary to adapt the description, including any drawings, to the amended claims so as to remove that inconsistency.
Contact
Nikolaus Obrovski
Jeannine Hoppe
Spokespersons of the Boards of Appeal of the European Patent Office
[email protected]
This press release is a non-binding document for media use.
Further information