2.1.4 Language issues

In T 1076/12 the board held that it was the text of the application as originally filed, even if the text was not in an official language of the EPO, that had to be used, together with any other non-text portions of the application as filed, in order to determine the "content of the earlier application as filed" as referred to in Art. 76(1) EPC.

In T 1312/19 this led to an "inescapable trap", as the amendments necessary to overcome an objection under Art. 76(1) EPC extended beyond the content of the divisional application as originally filed. Indeed, a term used in claim 1 of the patent as granted on the divisional application was broader than the term used in the earlier application as originally filed in Italian. Claim 1 of the seventh auxiliary request filed in appeal replaced this term by a term which the opposition division had accepted as a correction under Art. 14(2) EPC. The board, however, pointed out that, since the appellant had chosen to file the divisional application directly in English, there was no application filed in "any other language" and Art. 14(2), second sentence, EPC therefore did not apply.

See also chapter II.E.1.2.3.