On 6 February 2025, the Enlarged Board of Appeal (EBA) released its preliminary opinion on a key legal question regarding the interpretation of patent claims under Article 69 of the European Patent Convention (EPC). This opinion could have significant implications for the assessment of patentability and the balance between patent holders’ rights and legal certainty for third parties.
In its findings, the EBA addresses the admissibility of considering Article 69 EPC principles in claim interpretation. The opinion highlights two crucial aspects: (i) whether Article 69 should be applied when assessing patentability, and (ii) whether it serves as the legal basis for claim interpretation when assessing the patentability of an invention under Articles 52 to 57 EPC.
Notably, the EBA's preliminary view indicates a shift away from the strict notion that patentability should be determined based solely on the wording of the claims. Instead, it clearly suggests that descriptions and figures may generally be considered during claim interpretation.
This evolving stance raises an important question: where will the EBA ultimately position itself on the spectrum between ensuring fair protection for patent proprietors and providing legal certainty for third parties? The final decision remains to be seen, but its impact on European patent law is expected to be profound.
Stay tuned for further developments as the procedure unfolds.
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Author: Dr. Julius S. Cohen