5.1. General principles

Article 84 EPC stipulates that the claims must be supported by the description. This requirement means that the subject-matter of the claim must be taken from the description and it is not admissible to claim something which is not described (see e.g. T 906/10, T 684/12, T 1694/12, T 758/13 and T 56/21).

In decision T 133/85 (OJ 1988, 441) the board took the view that a claim which did not include a feature described in the application (on the proper interpretation of the description) as an essential feature of the invention, and which was therefore inconsistent with the description, was not supported by the description for the purpose of Art. 84 EPC 1973. The boards apply this principle as part of their established jurisprudence, see e.g. T 409/91 (OJ 1994, 653), T 939/92, T 322/93, T 556/93, T 583/93, T 659/93, T 482/95, T 616/95, T 586/97, T 687/98, T 1076/00, T 637/03 and T 1399/17. The requirement for all essential features to be indicated is inferred to some extent from different provisions of Art. 84 EPC (see in this chapter II.A.3.3. in relation to clarity). In T 2049/10 the board considered the topic "essential feature missing" to not primarily be a question of clarity but of support by the description (both subsumed under Art. 84 EPC).

In T 409/91 the invention related to fuel oils. In the description the use of certain additives was presented as an essential constituent of the fuel oil composition. As this feature was missing in the claims, the board found that they defined some other invention which was not sufficiently disclosed. Although the requirements of sufficient disclosure of the invention (Art. 83 EPC 1973) and support by the description (Art. 84 EPC 1973) were related to different parts of the patent application, they gave effect to the same legal principle that the extent of a patent monopoly, as defined by the claims, should correspond to the technical contribution to the art (see also chapter II.C.8. "The relationship between Article 83 and Article 84 EPC").

Many boards further stress that the requirement for the claims to be supported by the description was intended to ensure that the extent of protection as defined by the patent claims corresponds to the technical contribution of the disclosed invention to the art (see T 409/91; T 435/91, OJ 1995, 188; T 1055/92, OJ 1995, 214; T 659/93; T 825/94; T 586/97; T 94/05; T 1217/05; T 1694/12 and T 809/12). Therefore the claims must reflect the actual contribution to the art in such a way that the skilled person is able to perform the invention in the entire range claimed (T 659/93, T 94/05). A purely formal support by the description, i.e. a verbatim repetition of the mention of a claimed feature, cannot meet these requirements (T 94/05, summarised in the next section; see also T 127/02, T 1048/05, T 758/13, T 2483/16 and T 590/21). However, according to a different view, a review of the discussions in the various drafts to be found in the preparatory material suggests that the requirement for support of the claims was viewed rather as a formal matter to ensure that the description and claims had the same extent (T 1020/03, OJ 2007, 204). In T 1020/03 the board concluded that in the case in point Art. 84 EPC 1973 could not be used to force an applicant to cut down the scope of first or second medical use claims considered too broad compared to any use disclosed in the description. Other decisions in turn consider both aspects (see e.g. T 297/05).

In T 695/16 the board noted that characterising features a and b in claim 1 were clear to the skilled person, i.e. their structural form, function and interrelation were clear. In the description there was at least a verbatim repetition of the characterising features of claim 1. Thus said features were also disclosed in a clear manner in the description, thereby supporting the wording of claim 1, and the scope of the claims was not broader than justified by the extent of the description. Since features a and b were per se clear, a specific denomination of these in the part of the description directed to the specific embodiment depicted in the figures was not mandatory. Any reading of the description and viewing of the figures had to be done with the knowledge that features a and b were present and interacted.

For case law on the use of description and drawings to interpret the claims see in this chapter II.A.6.2.

In T 223/23 claim 1 of the main request was directed at a product as such, namely a trace element solution, which was defined by the types and amounts of the trace elements (zinc, manganese, selenium and copper) dissolved therein. The board found that even if, according to the description, the invention aimed at providing a highly concentrated trace element solution, and provided for the first time a process allowing the preparation of such a highly concentrated solution, this did not mean that the claims should be limited to that particular process or to a solution defined in terms of that particular process for them to comply with Art. 84 EPC. A lack of support would only arise if there were well-founded reasons for believing that the skilled person would be unable to extend the particular teaching of the description to the whole of the field claimed by using routine methods.