Introduction
The EPO has released the preview of the Guidelines for Examination applicable from April 2026. The revision goes beyond editorial updates and implements several substantive changes with direct impact on drafting, prosecution and opposition. Central elements are the implementation of Enlarged Board decisions G 1/24 and G 1/23, a revised approach to selection inventions, formal acceptance of colour drawings, and the first guidance on usage of artificial intelligence in patent prosecution matters.
This article focuses solely on the key modifications to the Guidelines for Examination. While numerous minor adjustments have been made, the discussion below highlights only the most significant changes.
Novelty and Prior Art: New Standard for Selection Inventions and Marketed Products
The Guidelines revise the novelty assessment for selection inventions. The former case-law-derived tests, such as whether the skilled person would “seriously contemplate” a selection or whether a sub-range is “narrow and sufficiently far removed”, are no longer applied. Instead, the EPO now consistently applies the direct and unambiguous disclosure standard. A selected sub-range is only non-novel if the skilled person can clearly and unambiguously derive it from the prior art using common general knowledge. This aligns the Guidelines with G 2/10 and recent Boards of Appeal decisions and simplifies the legal framework while raising the evidentiary threshold for novelty attacks.
In parallel, the Guidelines implement G 1/23 on products placed on the market. Products that are commercially available form part of the state of the art together with all properties that can be analysed by the skilled person. There is no requirement that the prior disclosure enables reproduction of the product. The ability to obtain and analyse the marketed product is sufficient. This applies equally to natural and synthetic materials. Technical information relating to such products, including brochures or literature, is also prior art even if reproduction would not be possible.
Claim Interpretation After G 1/24: Description Always Matters
Following G 1/24, claim interpretation at the EPO now systematically takes the description and drawings into account. This applies in all cases, not only where the claim wording is unclear or ambiguous. At the same time, the Guidelines emphasise a clear boundary: the description cannot be used to import limiting features that are not supported by the claim wording itself. Where the description defines a term more broadly than its ordinary meaning, that broader definition governs the interpretation for patentability. These principles now apply already at the search stage, reinforcing the need for internal consistency between claims and description.
Repeated Amendments After Rule 71(3) EPC: Immediate Refusal Confirmed
The 2026 Guidelines further tighten the procedure following a communication under Rule 71(3) EPC. Where an applicant files amended application documents in response to a renewed Rule 71(3) communication, and those amendments correspond to requests that were already discussed during oral proceedings and found inadmissible, the Examining Division may refuse the application without further procedural steps. This applies provided that the subject-matter discussed at the oral proceedings has not changed.
Clarity Requirements Tightened
Clarity objections regarding relative terms are addressed in more detail, reflecting recent decisions. The Guidelines are clarifying now that only in case a relative term has no well-recognised meaning and its meaning is not clear in the context of the whole disclosure, the division invites the applicant to replace it, if possible, by a more precise wording found elsewhere in the disclosure as originally filed.
Colour Drawings Fully Integrated into EPO Practice
Colour drawings are now fully embedded in the Guidelines across filing, formalities and amendment stages. Missing drawings based on a priority application may include colour, provided the format matches the priority filing. Physical and reproducibility requirements have been adapted accordingly. Detailed rules now govern filing conditions, sheet presentation, execution standards and replacement drawings. Colour drawings are also explicitly addressed in the context of amendments, reducing prior uncertainty.
Procedural Changes: Acceleration, Amendments and Oral Proceedings
Accelerated search under the PACE programme has been discontinued. Acceleration remains available only for examination. The Guidelines further clarify how examining and opposition divisions must exercise discretion when dealing with amendments. Where the examining division decides to make use of its discretionary power not to admit amended claims, the reasons why the amended set of claims is prima facie not allowable must be given. According to the updated Guidelines, extensive reasoning is incompatible with a prima facie assessment. If an amendment needs to be discussed in the same degree of detail as if it had been admitted, it should therefore be admitted.
In opposition, auxiliary requests must be reviewed on their substance before being rejected, ensuring a genuine assessment of whether they address the objections. According to the updated Guidelines, refusing any further amendment may be appropriate if there are signs of procedural abuse, for example if it becomes evident after various unsuccessful amendments that the proprietor is not seriously trying to overcome the objections but is only delaying the procedure.
Artificial Intelligence: Responsibility Remains with the Parties
For the first time, the Guidelines contain a dedicated general section on artificial intelligence. The core principle is explicit: applicants and representatives remain fully responsible for the content of all submissions, irrespective of whether AI tools were used. At the same time, the EPO formally acknowledges that AI can improve efficiency and quality, subject to a human-centric approach governed by its internal AI policy.
AI-assisted minute-taking is now addressed in the procedural part of the Guidelines. Oral proceedings conducted by videoconference may be recorded when AI is used to draft the minutes. The recordings are deleted once the minutes are issued and are not made available to the parties.
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Author: Dr. Michael Schmid and Dr. Julius S. Cohen