6.6.4 Forbidden area of the claims

As today there is a clearly predominant opinion among the boards that the definition of the "forbidden area" of a claim should not be considered as a matter related to Art. 83 and 100(b) EPC (T 1811/13, T 647/15, T 646/13).

In other words, according to established case law of the boards of appeal, the question of whether a skilled person is working or not within the claimed scope ("forbidden area" of a claim) is related to the definition of the scope of protection sought (Art. 84 EPC) and not to the sufficiency of disclosure of the invention (Art. 83 EPC) (as summed up in T 1673/15). See also Case Law of the Board of Appeal, 9th edition, 2019, for an overview of the earlier – or now at least minority – case law taking a different view.

See also chapter II.C.8.2. "Article 83 EPC and clarity of claims".