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2 September 2011

EPO Enlarged Board Issues Decision on Disclaimers (G 2/10)

EPO Enlarged Board Issues Decision on Disclaimers (G 2/10)

The Enlarged Board of the EPO has handed down its decision on the allowability of disclaimers that disclaim subject matter positively disclosed in the application as filed, so-called 'positive disclaimers'.

The referral arose out of an apparent inconsistency in the application of the case law regarding the allowability of disclaimers with respect to Article 123(2) EPC (which prohibits added subject matter).

The Enlarged Board has held that it is not the particulars of the disclaimer itself which need to be examined when determining whether or not Article 123(2) EPC has been violated. Instead, an amendment to a claim by the introduction of a disclaimer that disclaims subject matter positively disclosed in the application as filed infringes Article 123(2) EPC if:

“the subject matter remaining in the claim after the introduction of the disclaimer is not, be it explicitly or implicitly, directly and unambiguously disclosed to the skilled person using common general knowledge, in the application as filed.”

Therefore, when considering whether a so-called 'positive disclaimer' constitutes added subject matter, the overriding consideration is whether the subject matter of the claim as amended is directly and unambiguously disclosed in the application as filed. The remaining subject matter must be looked at and this requires a technical assessment of the overall technical circumstances of the individual case under consideration. A formulaic approach should not be used when determining whether such disclaimers are allowable.

As a result, rather than simply endorsing or rejecting so-called 'positive disclaimers', the Enlarged Board has decided that an assessment of the resulting claim is required in order to judge whether new subject matter is present.

For applicants, this will likely mean that they will have to present a convincing case regarding the basis for the subject matter that remains after introducing a positive disclaimer, rather than simply relying on the contention that 'if it is disclosed, it can be disclaimed'.

A more in-depth review of G 2/10 will appear in our October patent newsletter.

Useful links

Text of the full decision G 2/10


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