2.3.3 Ground raised against amended claims in opposition proceedings

In T 1975/09 the board held that Art. 100(c) EPC – and not Art. 76(1) EPC – would have been the correct provision to cite in the decision of the opposition division when the claims of the granted patent were considered. With respect to amendments made to the claims in the course of the opposition proceedings, Art. 101(3)(a) and (b) EPC required the opposition division to form an opinion on whether or not the patent and the invention to which it related met the requirements of the Convention. Art. 76(1) EPC related to a requirement for filing a divisional application, which was not a requirement under the Convention for an (amended) patent. Therefore, the requirement of Art. 123(2) EPC, although not explicitly referring to the content of the "earlier application(s)", was the corresponding requirement of the Convention within the meaning of Art. 101(3) EPC, to be met by the patent in relation to amendments made thereto, with respect to the content of the earlier and of the divisional application(s) as filed. See however e.g. T 2371/18, T 2490/18, T 3272/19 of 11 February 2021 date: 2021-02-11, which apply Art. 76(1) EPC to claims amended in opposition (appeal) proceedings.