1.4.4 The essentiality or three-point test
The board in T 1472/15, citing T 2311/10 and T 1852/13, held that, contrary to how T 331/87 had often been misinterpreted, the "essentiality test" was not absolute vis-à-vis the "gold standard" and could merely be used as an aid in ascertaining what had been originally disclosed (see also T 648/10, T 755/12, T 2095/12, T 2599/12, T 46/15, T 1420/15, T 85/16 and T 1189/16. It is the requirements of the "gold standard", which ultimately must be met when assessing any amendment for its compliance with Art. 123(2) EPC and (by analogy) Art. 76(1) EPC (T 838/16 with reference to T 1852/13 and T 755/12; see also T 1462/14, T 71/19 and T 1270/20). The "essentiality test" cannot take the place of the gold standard (T 172/17).
- Annual report: case law 2022
- Summaries of decisions in the language of the proceedings