4.3. No replacement of the description under Rule 139 EPC

Decision G 2/95 (OJ 1996, 555) decided that the complete documents forming a European patent application could not be replaced under R. 88 EPC 1973 (R. 139 EPC). In J 16/13 the board held that this equally applied to the exchange of a description. This followed from the principle that the filing date is inseparable from the description, since it is obvious that allowing an exchange of "only" the description by way of correction would directly result in the separation of the filing date from the description.

According to T 1963/17, the reason for this is simply that in light of the infinite possibilities of drafting a description, it is not obvious to a skilled person how an amended description should look like. The board observed that in the case in hand, in which the originally filed description did not match the claims and applicant requested to substitute the originally filed description, it may not even have been obvious to a skilled person which invention the applicant intended to pursue. Moreover, the board agreed with J 27/10 that an interpretation of R. 56 EPC that some, or all, of the description that was originally filed in order to obtain a filing date could be amended, replaced or deleted is incorrect. See also chapter IV.A.5.4.2.