Last year, the EPO’s Enlarged Board of Appeal (EBA) completely overturned the general approach that the EPO had taken for decades in interpreting patent claims. Instead of insisting that the claims must be inherently clear and interpreted without reference to the description, in decision G1/24 the EBA decided that the description and drawings must always be ‘consulted’ to interpret the claims- and certainly when assessing patentability. Unsurprisingly, significant uncertainty remains as to how G 1/24 is to be applied in practice. That uncertainty has already led to a further referral, G 1/26, which seeks clarification on a number of important issues arising from the decision.
In this article, we examine the questions referred to in G1/26. We also consider the potential potential consequences of the EBA’s answers for different parties.