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EPO Enlarged Board of Appeal on Clarity: Clear As It Has Ever Been

epologoThe Enlarged Board of Appeal has now issued its Decision on referral G 3/14.  G 3/14, originally reported in IPcopy here and with subsequent updates, most recently here, relates to how issues relating to clarity should be considered in opposition and opposition appeal proceedings.   The Enlarged Board was faced with a choice between a “conventional” approach in which clarity can only be considered where the lack of clarity lies in the amendment (a line of cases which the EBA considered to lead from T 301/87) and a “divergent” approach allowing a wider power to examine for clarity (a line of cases considered to lead from T 1459/05 – the EBA drew particular attention here to T 472/88).  The Enlarged Board came down clearly on the side of the conventional approach, but also went beyond the circumstances of the case referred to discuss the boundary between claims that should and should not be examined for clarity. (more…)