1.2. Content of the application as filed: Parts of the application which determine the disclosure of the invention
1.2.1 Description, claims and drawings
Regarding the concept of the content of the application as filed, G 3/89 (OJ 1993, 117) and G 11/91 (OJ 1993, 125) laid down that it related to the parts of the European patent application which determined the disclosure of the invention, namely the description, the claims and the drawings. Note however that since the revision of the EPC, when determining the application documents "as filed", account has to be taken of R. 40 and 56(3) EPC.
Amendments can only be made within the limits of what a skilled person would derive from the whole of these documents as filed (G 2/10, OJ 2012, 376). In T 676/90 the board considered that the content of an application was defined not only by features mentioned or shown therein but also by their relationship to each other. Accordingly, it found that a figure could never be interpreted in isolation from the overall content of the application but only in that general context.
In T 1544/08 the board held that, if the drawings of the originally filed application were in colour, it was these figures which must be used as the basis for determining whether subsequently filed figures contained added subject-matter within the meaning of Art. 123(2) EPC.
- T 324/21
Catchword:
The description of a drawing may be inextricably linked to the specific disclosure of this drawing. If a feature in the description of the drawing is extracted from the very specific context of the drawing in order to be included in a claim, the specific disclosure of the drawing must be taken into account. If there is no literal support for this specific disclosure in the application as filed which could be used for supplementing the feature used for amending the claim, it may not be possible to avoid an unallowable intermediate generalisation. This may in particular occur if a feature from a specific and detailed embodiment is placed in the context of a schematic drawing. This may lead to a trap-like situation. (Reasons, 2.8.4 and 2.9)