1.2.1 Description, claims and drawings

Regarding the concept of the content of the application as filed, G 3/89 (OJ 1993, 117) and G 11/91 (OJ 1993, 125) laid down that it related to the parts of the European patent application which determined the disclosure of the invention, namely the description, the claims and the drawings. Note however that since the revision of the EPC, when determining the application documents "as filed", account has to be taken of R. 40 and 56 EPC. Since 1 November 2022, R. 56a EPC is relevant too.

Amendments can only be made within the limits of what a skilled person would derive from the whole of these documents as filed (G 2/10, OJ 2012, 376). In T 676/90 the board considered that the content of an application was defined not only by features mentioned or shown therein but also by their relationship to each other. Accordingly, it found that a figure could never be interpreted in isolation from the overall content of the application but only in that general context.

In T 1544/08 the board held that, if the drawings of the originally filed application were in colour, it was these figures which must be used as the basis for determining whether subsequently filed figures contained added subject-matter within the meaning of Art. 123(2) EPC. On the possibility to file applications containing drawings in colour and greyscale as from 1 October 2025, see the notice from the EPO dated 5 September 2025 (OJ 2025, A57).

In T 2166/10 the patent proprietor filed an appeal against the decision of the opposition division revoking the patent, which had been granted on the basis of a Euro-PCT application. Several pages of the description were missing from the original application and the opposition division held that only the originally filed pages were entitled to the international filing date. The subject-matter as granted consequently extended beyond the content of the application as filed. The board held that there was no doubt that the preliminary examination and the patent in suit were partly based on new description pages which had been submitted in the course of the international preliminary examination procedure by way of amendment and which were missing from the application as originally filed. The applicant had never raised the issue of the missing pages or requested a correction of the filing date (see also J 3/00). Nor did the applicant subsequently file a request for correction of an error in the decision to grant. The board therefore concluded that the opposition division was correct when it held that the application as filed therefore did not include the missing pages of the description.

Citing G 3/89, the board in T 1424/23 recalled that the content of the application as filed consists of the description, claims and drawings as filed, i.e. on the filing date. In the case in hand, the application as filed had been published during the international phase. However, the decision under appeal discussed the amendments made to claim 1 compared to the amended claim 1 filed on entry into the European phase. The board held that the claims filed on entry into the European phase did not provide a basis for assessing compliance with Art. 123(2) EPC. See also T 735/03 in which the board explained that amendments filed during the international phase must comply with Art. 123(2) EPC.