1.2.1 Literal interpretation

The Enlarged Board stated that when interpreting provisions of the EPC, it usually starts from the wording of the relevant provision and even if the wording of a provision reveals its meaning clearly, it is then to be examined whether the result of the literal interpretation is confirmed by the meaning of the words in their context. It could well be that the wording only superficially has a clear meaning. At any rate, a literal interpretation must not contradict the purpose of the provision (see G 1/90, OJ 1991, 275, 278, point 4 of the Reasons); G 6/91 (OJ 1992, 491, OJ 1992, 499, point 15 of the Reasons); G 3/98 (OJ 2001, 62, 71, point 2.2 of the Reasons). In G 2/12, more than one meaning could in principle be attributed to the wording (cf. G 1/88, OJ 1989, 189, 193, point 2.2 of the Reasons). Therefore, the true and intended meaning of the term "essentially biological processes for the production of plants" needed to be analysed further.

In G 1/18 (OJ 2020, A26), the Enlarged Board dealt with literal interpretation in point IV.1. Having reiterated the principles stated in G 2/12, it went on to interpret Art. 108, first sentence, EPC literally, before giving Art. 108, second sentence, EPC a first narrow and then broad literal interpretation. It found that, on a literal interpretation based on a joint reading of the two first sentences of Art. 108 EPC (broad literal interpretation), an appeal was validly filed only if the appeal fee was paid within the prescribed two-month period. It added that there was no inconsistency in the provision's wording in its three language versions. It concluded by stating that this literal interpretation of Art. 108, first and second sentences, EPC led to a result in keeping with the provision's purpose.

In T 844/18, the board stated that the EPC was a special agreement within the meaning of Art. 19 Paris Convention, so application of its provisions could not contradict the basic principles concerning priority laid down in the Paris Convention. Therefore, in order to interpret "any person" in Art. 87(1) EPC, it was necessary to interpret the legal concept of "any person" in Art. 4A Paris Convention, the interpretation given in both treaties needing to be the same. The board concluded that the ordinary meaning of the term "any person" in Art. 87(1) EPC was ambiguous. The term "celui qui" in the authentic French text of Art. 4A Paris Convention was perhaps less ambiguous and more likely to support the "all applicants" approach. The "all applicants" approach was certainly a plausible interpretation of the term from the perspective of its ordinary meaning and appeared to be the one consistently applied by several member states of the EPC over the last hundred years (see points 36 et seq. and 83 of the Reasons). The board then turned to the object and purpose of the Paris Convention.

In T 2320/16, the board was of the opinion that, taking the ordinary meaning of the terms in Art. 116 EPC into account, it could not be concluded that oral proceedings by videoconference infringed the right to oral proceedings laid down in that Article. The board added that the "travaux préparatoires" on Art. 116 EPC 1973 neither confirmed nor contradicted its interpretation of Art. 116 EPC.