6.3.1 Presentation of the application documents (Rule 49 EPC)

Until 31 January 2023, R. 46 EPC prescribed the form of drawings and the general provisions governing the presentation of the application documents were found in R. 49 EPC. These included, among others, the requirement in R. 49(2) EPC that the documents making up the application shall be presented so as to allow electronic and direct reproduction in an unlimited number of copies (J 4/09), the requirement in R. 49(7) EPC that the lines of each sheet of the description and of the claims shall preferably be numbered in sets of five (T 3181/19) and the requirement in R. 49(10) EPC that only the technical terms, formulae, signs and symbols generally accepted in the field in question shall be used (T 1981/15).

By decision of 13 October 2022, the Administrative Council adopted a set of legal changes to the Implementing Regulations aiming at supporting the ongoing digital transformation in the patent grant procedure at the EPO and strengthening alignment with the PCT (OJ 2022, A101). In this context, it delegated the authority to decide on the presentation requirements of the application and other documents to the President of the EPO (R. 49(2) EPC), including the formal requirements of drawings. These rule changes and a decision of the President restating the requirements previously set forth in R. 46 and R. 49 EPC (OJ 2022, A113) entered into force on 1 February 2023. For further details, see the notice from the EPO published in OJ 2022, A114.

In J 11/20 the Legal Board explained that, in the context of the examination, with respect to formal requirements of the application, the Receiving Section was competent under R. 58 EPC to identify inconsistencies in the application documents which were immediately apparent, including whether formal discrepancies were present between amended documents and the documents as originally filed, provided no technical knowledge was required. Citing J 4/09, the Legal Board said that the question of what exactly the drawings showed with respect to the claimed invention was not part of the formal examination before the Receiving Section. An analysis by the Receiving Section going beyond the points to be examined on filing under R. 46, R. 49(1) to (9) EPC, and R. 49(12) EPC (as applicable until 31 January 2023) was impermissible. In particular, it was not permissible to allow the filing of improved drawings resulting in a disclosure which could not be found in the original version of the application; nor could the applicant be compelled to change the drawings and so sacrifice a disclosure which, in their view, could only take this form.