2.3.1 Literal interpretation

The Enlarged Board stated that when interpreting provisions of the EPC, it usually starts from the wording of the relevant provision and even if the wording of a provision reveals its meaning clearly, it examines whether the result of the literal interpretation is confirmed by the meaning of the words in their context (G 2/12 and G 2/13; G 1/21 of 16 July 2021 date: 2021-07-16). It could well be that the wording only has a clear meaning superficially. At any rate, a literal interpretation must not contradict the purpose of the provision (see G 1/90, OJ 1991, 275, 278, point 4 of the Reasons; G 6/91, OJ 1992, 491, OJ 1992, 499, point 15 of the Reasons; G 3/98, OJ 2001, 62, 71, point 2.2 of the Reasons). In G 2/12, more than one meaning could in principle be attributed to the wording (cf. G 1/88, OJ 1989, 189, 193, point 2.2 of the Reasons). Therefore, the true and intended meaning of the term "essentially biological processes for the production of plants" needed to be analysed further.

In G 1/18, the Enlarged Board dealt with literal interpretation in point IV.1. Having reiterated the principles stated in consolidated cases G 2/12 and G 2/13, it went on to interpret Art. 108, first sentence, EPC literally, before giving Art. 108, second sentence, EPC a first narrow and then broad literal interpretation. It found that, on a literal interpretation based on a joint reading of the two first sentences of Art. 108 EPC (broad literal interpretation), an appeal was validly filed only if the appeal fee was paid within the prescribed two-month period. It added that there was no inconsistency in the provision's wording in its three language versions. It concluded by stating that this literal interpretation of Art. 108 EPC, first and second sentences, EPC led to a result in keeping with the provision's purpose.

In T 844/18, the board stated that the EPC was a special agreement within the meaning of Art. 19 Paris Convention, so application of its provisions could not contradict the basic principles concerning priority laid down in the Paris Convention. Therefore, in order to interpret "any person" in Art. 87(1) EPC, it was necessary to interpret the legal concept of "any person" in Art. 4A Paris Convention, the interpretation given in both treaties needing to be the same. The board concluded that the ordinary meaning of the term "any person" in Art. 87(1) EPC was ambiguous. The term "celui qui" in the authentic French text of Art. 4A Paris Convention was perhaps less ambiguous and more likely to support the "all applicants" approach. The "all applicants" approach was certainly a plausible interpretation of the term from the perspective of its ordinary meaning and appeared to be the one consistently applied by several member states of the EPC over the last hundred years (see points 36 et seq. and 83 of the Reasons). The board then turned to the object and purpose of the Paris Convention. See also chapter II.D.2.

In G 1/21 the Enlarged Board found that the wording of Art. 116 EPC clearly indicated that this provision related to proceedings that were oral. According to the definition in the Oxford English Dictionary, oral meant "by the spoken word, by speech, by word of mouth". There was thus no basis in this word for limiting its scope to in-person hearings in a courtroom before the deciding body.

In T 695/18, the board first looked at the wording of R. 139 EPC, and found that, while the wording of the first sentence could give the impression that R. 139 EPC was applicable almost without limit ("in any document filed with the EPO"), the wording of the second sentence ("However"; "such") connected the provisions of the two sentences, with the second being a special instance of the general rule of the first and adding an obviousness criterion for parts, not of anything but of the patent application or patent, which were of more serious consequence to the interests concerned. The board noted that these textual observations did not in themselves provide a clear picture of the scope of R. 139 EPC. On the one hand, the language of the first sentence was open. On the other hand, its linkage to the content of the application or patent mentioned in the second sentence, and the lack of further conditions, were each indicative of some limitations. Literal interpretation of the provision therefore did not bring the board to a clear conclusion. The board continued its analysis with a systematic interpretation.