In accordance with Article 112(1)(a) EPC, Technical Board of Appeal 3.3.09 has referred the following points of law to the Enlarged Board of Appeal by interlocutory decision of 17 October 2016 in case T 437/14:
1. Is the standard referred to in G 2/10 for the allowability of disclosed disclaimers under Article 123(2) EPC, i.e. whether the skilled person would, using common general knowledge, regard the subject-matter remaining in the claim after the introduction of the disclaimer as explicitly or implicitly, but directly and unambiguously, disclosed in the application as filed, also to be applied to claims containing undisclosed disclaimers?
2. If the answer to the first question is yes, is G 1/03 set aside as regards the exceptions relating to undisclosed disclaimers defined in its answer 2.1?
3. If the answer to the second question is no, i.e. if the exceptions relating to undisclosed disclaimers defined in answer 2.1 of G 1/03 apply in addition to the standard referred to in G 2/10, may this standard be modified in view of these exceptions?
The Enlarged Board of Appeal considering the referral will be composed as follows: M-B. Tardo-Dino (Chair), R. van Peursem, I. Beckedorf C. Vallet, W. van der Eijk, G. Eliasson, A. Lindner.
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 1 March, 2017 with the Registry of the Enlarged Board of Appeal, quoting case number G 1/16.
Each statement should also be accompanied by a list of cited documents and copies on paper or, preferably, CD/DVD of any such documents not previously filed.