Referral to the Enlarged Board of Appeal – G 1/24 ("Heated aerosol")

Under Art. 112(1)(a) EPC, a Board of Appeal refers a question to the Enlarged Board of Appeal if it considers that a decision is required, in order to ensure uniform application of the law or if a point of law of fundamental importance arises.

Technical Board of Appeal 3.2.01 has by interlocutory decision T 439/22 referred the following questions to the Enlarged Board of Appeal (referral pending under G 1/24 - Heated aerosol):

1. Is Article 69(1), second sentence EPC and Article 1 of the Protocol on the Interpretation of Article 69 EPC to be applied on the interpretation of patent claims when assessing the patentability of an invention under Articles 52 to 57 EPC?
2. May the description and figures be consulted when interpreting the claims to assess patentability and, if so, may this be done generally or only if the person skilled in the art finds a claim to be unclear or ambiguous when read in isolation?
3. May a definition or similar information on a term used in the claims which is explicitly given in the description be disregarded when interpreting the claims to assess patentability and, if so, under what conditions?

Contact

Nikolaus Obrovski
Jeannine Hoppe
Spokespersons of the Boards of Appeal of the European Patent Office
boa-press@epo.org