5.4.2 Interpretation of Rule 56 EPC

According to J 27/10, the same interpretation is to be given to the term "parts of the description ... appear to be missing" in R. 56(1), first sentence, EPC as to the term "missing parts of the description" in the subsequent paragraphs of R. 56 EPC for deciding if a part is missing from the description. The term "description" in "missing parts of the description" in R. 56 EPC refers to the description which was originally filed in order to obtain a filing date and not to any other description. The incomplete originally filed description is to be completed by the missing parts which must be added to the already filed text of the description. Thus 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 T 1963/17 and J 16/13).

In J 15/12 the Legal Board made it clear, with reference to J 27/10, that R. 56 EPC could also not be used to replace drawings. R. 56(1), first sentence, EPC was confined to drawings referred to in the description or claims but which appeared to be missing. In J 12/14 the Legal Board stated that the filing of drawings where the re-production of the figures is of low visual quality cannot be remedied by R. 56 EPC.

In J 2/12 the Legal Board found that where (a) the description as filed with an application includes references to numbered drawings and (b) drawings with corresponding numbering are also filed with the application, different drawings may nevertheless be filed later under R. 56 EPC as "missing drawings" if it can be established without having to apply technical knowledge that the drawings originally filed with the application are not the drawings referred to in the description and that the later-filed drawings are the drawings referred to in the description. In the case at issue, it was immediately apparent that the figures referred to in the description were not the figures as originally filed. In other cases it might be that such a conclusion could not be reached so readily, but as it was so clear in this case, the Legal Board did not have to consider where in general the dividing line should be drawn.