Brief outline of the case
The patent relates to a handle portion of a hand-held electric tool, whereby the battery pack has a triangular cross-sectional configuration.
Dependent claim 2 as granted was dependent on claim 1 as granted and claim 3 on claim 2.
During OP before the Board, the proprietor submitted an amended description paragraph  in order to bring the description into conformity with the claim according to auxiliary request IV. In particular, the references to the no longer existing claims 2 and 3 were deleted.
Both opponents objected to the admittance of the amended paragraph, which they considered to be an amendment of the proprietor’s appeal case. In the absence of any exceptional circumstances justified by cogent reasons, the opponents argued that the Board should not admit the amendment under Art 13(2) RPBA20.
Common practice when adapting the description
The board held that it is rather common practice, if not specifically ordered otherwise, that a proprietor or applicant postpones the submission of an adapted description until one of its requests, in the form of a set of claims defining the matter for which protection is sought, is found admissible and allowable by the competent administrative department or by the Board of Appeal.
Only when an allowable set of claims is available, is the adaptation of the description and its examination on the requirements of the EPC carried out in a subsequent final stage.
Although this final step is far from being a formal matter and may give rise to various objections, it is always conditional upon the existence of an allowable set of claims.
Remittal in order to adapt the description
In addition, it is not only permissible under Article 111(1) EPC, but under certain circumstances even necessary, that a Board exercises its discretion to remit the case to the correspondent department with the order to adapt the description to an allowable set of claims
An adapted description is not an amendment the applicant’s or proprietor’s case
In view of this, the Board found that it would be rather illogical and contradictory that the filing of a description adapted to an allowable set of claims could amount to an amendment of an applicant’s or patent proprietor’s appeal case, when at the same time it is permissible to provide such an adapted description after appeal proceedings have terminated and the case has been remitted to the administrative department.
The Board concluded that the filing of a description adapted to a set of claims found by a Board of Appeal to meet the requirements of the EPC does not generally constitute an amendment to a party’s appeal case, let alone when, as in the case at hand, such an amended description consists solely of the deletion of the references to no longer existing claims.
Consequently, the opponents’ requests to not admit this amended description paragraph under Art 13(2) RPBA20 cannot be allowed and the amended description paragraph according to auxiliary request IV is admitted into the proceedings.
Opponent 2, supported by opponent 1, argued that the description paragraph as amended by the patent proprietor during oral proceedings according to auxiliary request IV amounted to a lack of clarity in the sense of Art 84, because paragraph  described subject-matter which did not support the claim of auxiliary request IV.
Regarding the alleged linguistic inconsistencies of the amended description paragraph, the Board noted that the only requirement imposed by Art 84 on the description is that it has to support the claims, so that even if a linguistic inconsistency was present in amended paragraph  according to auxiliary request V, this would not automatically amount to a lack of clarity in the sense of Art 84, as long as the claim is supported by the description.
In this respect, the Board noted that the battery pack described in paragraph  as granted made reference to the embodiments of granted claims 2 and 3, which are no longer present in auxiliary request IV.
It can be agreed that the battery packs described in paragraph  contain features that are not present in the hand-held tool with a battery pack according to the claim of auxiliary request IV. However, these features present in paragraph  are compatible with and not in contradiction to the claimed hand-held tool comprising a battery pack according to auxiliary request IV.
The Board was convinced that the skilled reader would not understand the claim of auxiliary request IV differently nor would they be confronted with new doubts on the matter for which protection is sought in light of the content of paragraph  according to auxiliary request IV.
Adaptation of the description to the claims either allowing grant or allowing maintenance in amended form during opposition is necessary. See also T 1024/18 and not T 1989/18.
It is understandable that the opponents wanted to get read of the patent even in amended form, and the objection under Art 13(2) RPBA20 was a clever move. The board did however rightly decide that the description ought to be adapted to the new claims in order for the patent to be granted or maintained in amended form.
The board made it clear that a pedantic adaptation is by no way needed. Provided the amendment is compatible and not in contradiction with the claimed device, even in case of a linguistic inconsistency, support would be given.
This does however not mean that in the description it is allowable to keep statements which imply that the claims cover something different to what is claimed.
Other recent decisions on the adaptation of the description
In T 1941/18, the requested amendments in paragraphs ,  and  of the patent specification constitute a usual and necessary adaptation of the description to the amended claim 1 according to the main request.
The example disclosed in paragraph  does not contradict the subject-matter of claim 1 and deletion of the passage of the description in question is therefore neither appropriate nor necessary.
The deletion in paragraph  of “Preferably……”, is also allowable as in amended claim 1, the feature is no longer optional
The deletion of a sentence in paragraph  is appropriate and necessary since it relates to a different embodiment of the invention from that claimed by claim 1
In T 1399/17, the description was not properly adapted, so that it cast doubts on the scope of the claim. The patent was revoked.
In the absence of a complete set of documents and in the absence of the applicant/proprietor, either
- the application is refused T 893/01, T 109/02
- the patent is revoked T 725/00, T 986/00, T 1024/18
There are some decisions to the contrary in which the board remitted in spite of the absence of the applicant/proprietor in order to adapted the description
- T 256/10 in examination
- T 484/12 in opposition