Referral to the Enlarged Board of Appeal – G 1/24 ("Heated aerosol")

Under Art. 112(1)(a) EPC, a Board of Appeal refers a question to the Enlarged Board of Appeal if it considers that a decision is required, in order to ensure uniform application of the law or if a point of law of fundamental importance arises.

Technical Board of Appeal 3.2.01 has by interlocutory decision T 439/22 referred questions to the Enlarged Board of Appeal to clarify the legal basis for interpreting patent claims for the purpose of assessing patentability, whether and under which circumstances the description and figures may be taken into account when interpreting a patent claim and, finally, the extent to which a patent can serve as its own dictionary. The Board of Appeal press release can be found here.

Specifically, the referring board is seeking the answer to the following three questions:

(1)  Is Article 69(1), second sentence, EPC and Article 1 of the Protocol on the Interpretation of Article 69 EPC to be applied on the interpretation of patent claims when assessing the patentability of an invention under Article 52 to 57 EPC?

(2)  May the description and figures be consulted when interpreting the claims to assess patentability and, if so, may this be done generally or only if the person skilled in the art finds a claim to be unclear or ambiguous when read in isolation?, and

(3)  May a definition or similar information on a term used in the claims which is explicitly given in the description be disregarded when interpreting the claims to assess patentability and, if so, under what conditions?

The EPO has issued a notice informing users that they will continue examination and opposition proceedings while the referral on claim interpretation is pending before the Enlarged Board of Appeal​. The EPO notice can be found here.