CASELAW-EPO - reviews of EPO Boards of Appeal decisions

EP 3 076 804 (T 439/22) - Referral to the EBA on the interpretation of claims

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Further to my comment of 06.04.2024 in the blog, there are recent news in this matter.

As far as EP 3 076 804 (T 439/22) is concerned, the minutes of the OP held on 10.04.2024 make clear that an interlocutory decision will be issued on 10.06.2024.

 It is clear from the minutes that the board has decided a referral to the EBA on the application of Art 69 when interpreting claims in procedures before the EPO.

In view of the diverging case law on the application of Art 69 in procedures before the EPO, see the various publications on this blog, the referral is more than welcome.

Let’s hope that the questions will be clear enough to elicit a comprehensive decision of the EBA. Let’s further hope that the EBA not tempted to give a further “dynamic interpretation” of the EPC. The matter is too serious for it.

It will be interesting to see whether the referred questions will broach on the topic of adaptation of the description to the claims. If not this could be the topic of a further referral to the EBA.

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