h) Negative feature implicitly disclosed in original application – G 1/03 not applicable 

In T 1525/15 the appellant's objection related to a negative feature (or disclaimer) of both independent claims ("free of a micro-embossing design"). The board observed that there was no verbatim disclosure of this feature in the original application. The feature was added during the grant proceedings to establish novelty over document D1, which was state of the art according to Art. 54(3) EPC. The board emphasised that such an amendment was allowable: (i) if the negative feature was implicitly disclosed as such in the original application; or (ii) if the disclaimer was undisclosed in the original application but complied with the requirements formulated in decision G 1/03 (OJ 2004, 413) of the Enlarged Board of Appeal. In the case in hand the board came to the conclusion that the negative feature was implicitly but nevertheless directly and unambiguously disclosed in the original application. As the negative feature was disclosed as such in the original application, it was not necessary to examine whether the conditions set out in decision G 1/03 (and confirmed in G 1/16, OJ 2018, A70) were fulfilled.