2. Article 123(3) EPC – extension of the protection conferred

According to Art. 123(3) EPC the European patent may not be amended in such a way as to extend the protection it confers. This refers to the patent as a whole.

The wording of Art. 123(3) EPC 1973 had referred only to the claims of the patent; however, already under the EPC 1973, the boards had held that amendments to the description and the drawings could also extend the protection conferred within the meaning of Art. 123(3) EPC 1973 (see G 2/88, point 4 of the Reasons; G 1/93, point 11 of the Reasons; T 1149/97, OJ 2000, 259; and T 142/05). The board observed in T 953/22 that, for this reason, the basic principles analysed in the case law on Art. 123(3) EPC 1973 were also applicable to Art. 123(3) EPC. In particular, in T 142/05, the board held that amendments to the description and drawings could modify the content of the claims and possibly extend the scope of protection under Art. 69(1) EPC 1973, even where the wording of the claims was clear and remained unamended.

Article 123(2) EPC and Art. 123(3) EPC are mutually independent of each other (G 1/93, OJ 1994, 541); the same is true for Art. 76(1) EPC and Art. 123(3) EPC (T 1736/09).