Article 37

Communication from the Enlarged Board of Appeal concerning case G 1/26

In accordance with Article 112(1)(a) EPC, Technical Board of Appeal 3.3.05 has referred the following points of law to the Enlarged Board of Appeal by interlocutory decision of 3 February 2026 in case T 0873/24:

1. May a decision be considered to be "required" for the purposes of Article 112(1) EPC, if the referring Board demonstrates that the point of law in question arises out of the context of the case pending before it and, in the circumstances of the proceedings, it is reasonable for the Board to examine it and decide on it next?

2.(a) Does the fact that the claims are the starting point and the basis for assessing the patentability of an invention generally preclude a feature which is only disclosed in the description or the drawings of a patent from being read into the meaning of a granted claim, in particular if this leads to a restrictive reading of terms used in the claim?

2.(b) If the answer to question 2.(a) is no: is claim interpretation the result of both reading the claims and consulting the description and drawings as a unitary process and does the claim being the starting point and the basis for assessing the patentability rule out only those interpretations which can be derived from the patent as a whole but would clearly contradict the general technical understanding of the terms used in the claim?

3.(a) When assessing compliance with Article 123(2) EPC, must a term used in a claim be assessed against all interpretations that make technical sense to the skilled reader on the basis of the claim alone?

3.(b) If the answer to question 3.(a) is no: is it sufficient that only the interpretations of the subject-matter of the claim established against the background of the patent specification as a whole are directly and unambiguously derivable from the application as filed?

The text of the referral in English is available on the EPO website under epo.org/en/boards-of-appeal/decisions/t240873ex1

The Enlarged Board of Appeal considering the referral G 1/26 will be composed as follows: C. Josefsson (Chair), I. Beckedorf, D. Rogers, V. Bulatović, H. van Walderveen, G. Pricolo, D. Semino.

Third parties are hereby given the opportunity to file written statements in accordance with Article 10 of the Rules of Procedure of the Enlarged Board of Appeal (OJ EPO 2015, A35) in one of the official languages of the EPO (English, French or German).

To ensure that any such statements can be given due consideration, they should be filed by 30 November 2026 with the Registry of the Enlarged Board of Appeal, quoting case number G 1/26, and should be marked for the attention of Mr Nicolas Michaleczek ([email protected]).