1.4.1 Broadening of claim – permissible within the limits of the original disclosure

The deletion of a feature in a claim as filed may lead to a broadening of the claim. According to G 1/05 (OJ 2008, 271, referring to G 1/93, OJ 1994, 541), the applicant has a right to amend the claims so as to direct them to subject-matter not encompassed by the claims as filed. It is only after grant that the interests of third parties are further protected by Art. 123(3) EPC and the patentee's right to amend the claims is limited by the scope of the granted patent.

In T 133/85 (OJ 1988, 441) the board held that it was possible to broaden a claim (i.e. to extend the protection conferred by it) without contravening Art. 123(2) EPC, provided that the subject-matter which was within the claims for the first time as a result of the amendment was already disclosed within the content of the original application as filed (confirmed e.g. in T 732/00, T 273/04, T 1211/05).

In T 66/85 (OJ 1989, 167) it was pointed out that if a technical feature was deleted from a claim in order not to exclude from protection certain embodiments of the invention, the broadening of the claim did not contravene Art. 123(2) EPC 1973 as long as there was a basis for a claim lacking this feature in the application as originally filed (see also T 228/98).

In T 1724/08 the board held that the broadening of individual disclosed features, in particular those of an independent claim as filed, was not prohibited by Art. 76(1) EPC 1973; such amendments likewise required a direct and unambiguous disclosure in the earlier application as filed (see also T 1727/09).

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