New Referral (G1/24) to the Enlarged Board of Appeal (EBA) on claim interpretation
The written decision in T0439/22 has now issued and the questions being referred to the EBA concerning how and if the description should be used to interpret the claims of a patent are now known. The new referral is G1/24.
1. Is Article 69(1), second sentence EPC and Article 1 of the Protocol on the Interpretation of Article 69 EPC to be applied on the interpretation of patent claims when assessing the patentability of an invention under Articles 52 to 57 EPC?
2. May the description and figures be consulted when interpreting the claims to assess patentability and, if so, may this be done generally or only if the person skilled in the art finds a claim to be unclear or ambiguous when read in isolation?
3. May a definition or similar information on a term used in the claims which is explicitly given in the description be disregarded when interpreting the claims to assess patentability and, if so, under what conditions?
There is no guarantee that the EBA will accept the referral but, given the level of disagreement between different Boards of Appeal, any guidance from the EBA would welcome.
