Decision on G1/24 – The description and drawings should always be referred to when interpreting claims
The EPO’s Enlarged Board of Appeal (EBA) has now issued their decision on G1/24 the referral relating to claim interpretation that we covered in our previous article – confirming that the description and any drawings are always to be referred to when interpreting the claims, and not just in the case of unclarity or ambiguity.
The significance of this decision was highlighted by the EBA in their decision where they acknowledged that the referral “concern[s] a point of law of fundamental importance” and that it “will have an impact beyond the specific case at hand and will be relevant for a large number of similar cases before the Boards of Appeal, and before the examining and opposition divisions.”
In their decision the EBA highlighted two principles of claim interpretation:
1) The claims are the starting point and the basis for assessing the patentability of an invention under Articles 52 to 57 EPC
2) The description and any drawings are always referred to when interpreting the claims, and not just in the case of unclarity or ambiguity.
This puts the EPO’s approach consistent with national courts and the UPC in insisting that the description should be referred to for claim interpretation in all situations. This is clearly a good thing in providing a consistent approach. However, it reinforces that patent drafters should be careful in ensuring what is written in their specification is what they actually intend, as it can have weight on how the claims are to be interpreted. It will be interesting to see if this decision results in any change in the requests of EPO examiners to conform the description to the amended claims. Perhaps these requests will be enforced more widely. We shall see how things evolve following this decision in the coming months.
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