The European Patent Office's Board of Appeal 3.3.05 has decided to refer (in T0873/24) questions to the Enlarged Board of Appeal (EBA) concerning whether the decision in G1/24 should apply to the assessment of added subject matter.
In June 2025, the EBA issued its decision in G1/24, holding that: "The description and drawings shall always be consulted to interpret the claims when assessing the patentability of an invention under Articles 52 to 57 EPC..." Our technical briefing on G1/24 can be found here.
G1/24 did not explicitly address whether the description and drawings should always be consulted to interpret the claims when assessing added subject matter (governed under Articles 123(2) and 76(1) EPC).
The outcome in T0873/24 appears to depend upon whether the description is used to interpret a particular feature of claim 1, in the context of an objection of unallowably added subject matter. Claim 1 relates to a pre-coated steel strip and the feature in question is: "wherein the ratio of titanium to nitrogen is in excess of 3.42". From the minutes of the oral proceedings held on 3 February 2026, it appears that the ratio could be interpreted as (i) a weight ratio in the context of the claim alone, or (ii) a term encompassing either a molar ratio or weight ratio when the description is consulted. The Board appears to consider that the decision hinges on whether G1/24 applies when assessing added subject matter and, if so, to what extent.
The Board is yet to publish the exact questions it will refer to the EBA. We shall wait to see the questions, and whether the EBA will indeed accept the referral.
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