1.14.7 Replacement of complete description

In G 2/95 (OJ 1996, 555) the Enlarged Board observed that a correction affecting the content of the application could only be effected within the limits of Art. 123(2) EPC (as defined in G 3/89, OJ 1993, 117). The complete documents forming a European patent application, that is the description, claims and drawings, could not be replaced by way of a correction under R. 88 EPC 1973 (R. 139 EPC) by other documents which the applicants had intended to file with their request for grant.

In J 16/13 the board held that the ratio decidendi of G 2/95 (and also of J 5/06) was also applicable to all cases where at least a complete description was sought to be exchanged.

In J 3/21 the Legal Board observed that the ban on the replacement of the description by way of correction, established in G 2/95 on the basis of Art. 123(2) EPC and further developed in e.g. J 5/06 and J 16/13, was categorical and followed from the principle reflected in R. 40(1)(c) EPC that the accorded filing date was inseparable from the description as originally filed. An exchange of the description by way of correction would directly result in the separation of the filing date from the description in contravention of Art. 123(2) EPC.