1.7.2 Standards for examining disclosed and undisclosed disclaimers

In G 1/16 (OJ 2018, A70) the Enlarged Board considered that the choice of the proper test for assessing the allowability of any disclaimer is determined by the fundamental distinction, in terms of their legal nature, between disclosed disclaimers and undisclosed disclaimers. That distinction necessitates providing for each of the two classes of disclaimer a single specific test for assessing whether the introduction of a given disclaimer is in compliance with Art. 123(2) EPC. Therefore, for undisclosed disclaimers the proper test is whether the criteria of G 1/03 (OJ 2004, 413) are fulfilled, and for disclosed disclaimers the proper test is the "gold standard" disclosure test of G 2/10 (OJ 2012, 376).

In T 768/20, cited and followed in T 110/20, the board held that the only exception to the "gold standard" (G 2/10) were undisclosed disclaimers, governed by the rules laid down in G 1/03 (G 1/16). Point 2 of the Order of G 1/93 did not provide for a further exception.

With regard to the admissibility of disclaimers, reference should also be made to chapter II.D.4.2.