1.2.5 Secondary considerations: dynamic interpretation

The Enlarged Board stated that a "dynamic interpretation" might come into play where considerations have arisen since the Convention was signed which might give reason to believe that a literal interpretation of the wording of the relevant provision would conflict with the legislator's aims. Secondary considerations serve the purpose of testing the legal soundness of the conclusions reached in interpreting the scope of application of the process exclusion under Art. 53(b) EPC. The Enlarged Board concluded that the concept of a dynamic interpretation did not require revising the result of the interpretation established by applying traditional rules of construction (G 2/12, OJ 2016, A27, also cited in T 1063/18). In G 3/19, however, the Enlarged Board held to the contrary that the dynamic interpretation required as a result of the introduction (after G 2/12) of R. 28(2) EPC, which reflected the contracting states' clear intention, meant the interpretation of Art. 53(b) EPC in G 2/12 had to be abandoned (albeit not with retroactive effect).

The application in G 3/19 of the various methods of interpretation provided for in Art. 31 and 32 Vienna Convention, which also took into account the subsequent developments in the contracting states, did not in fact lead to the finding that the term "essentially biological processes for the production of plants" in Art. 53(b) EPC was to be read clearly and unambiguously as extending to products defined or obtained by such processes. The Enlarged Board therefore endorsed the conclusions it had come to in this respect in G 2/12. At the same time, however, it acknowledged that Art. 53(b) EPC did not prohibit this broader understanding of the process exclusion either. Furthermore, it recognised that, with the introduction of R. 28(2) EPC, the legal and factual situation underlying decision G 2/12 had substantially changed. This amendment constituted a new aspect or consideration which had arisen since the EPC was signed and which could give reason to believe that a grammatical, and restrictive, interpretation of the wording of Art. 53(b) EPC conflicted with the legislator's aims, whereas a dynamic interpretation could bring a result that diverged from the wording of the law.

In relation to the interpretation of Art. 116 EPC, the board in T 2320/16 (oral proceedings by videoconference) stated that there was no need for it to seek further means of interpretation. Art. 125 EPC was not concerned with the interpretation of the EPC but served merely as a "fill-in" in case of missing procedural provisions (G 2/12, point V.(1)). As Art. 116 EPC was understood not to impose any limitation on the specific form of oral proceedings, there was therefore nothing to "fill". Regarding a "dynamic interpretation" of Art. 116 EPC, the board was of the view that it was a further approach to construing inter alia a legal provision of the EPC (with reference to G 3/19, point XXII; G 2/12 point VIII.(2).1.(1); G 3/98, point 2.5 of the Reasons). The board found that oral proceedings by videoconference were consistent with both the literal interpretation of Art. 116 EPC 1973 and 2000 and the legislative intent underlying them. The question of whether a dynamic interpretation of Art. 116 EPC had to be considered therefore did not arise. Compare with G 1/21 of 16 July 2021 date: 2021-07-16 (OJ 2022, A49) and the referral decision T 1807/15 date: 2021-03-12, which explores dynamic interpretation with reference to G 3/19.