The EPO Enlarged Board of Appeal has ruled on the extent to which amendments made in EPO Opposition (and Opposition Appeal) proceedings may be examined for clarity, conciseness and support. They confirmed that compliance with Article 84 EPC may be examined only when, and to the extent that, the amendment introduces non-compliance with this article. In particular an amendment which introduces the feature of a dependent claim may not be examined for Article 84 where the feature introduced corresponds to the complete dependent claim or is a simple alternative in such a claim.
Amendments arise in approximately 70% of EPO Oppositions. It is therefore to be welcomed that the Enlarged Board has provided clarity in this area and in particular has limited the extent to which clarity can be raised. It should be noted however that where a Patentee seeks to rely on a feature from a dependent claim which is inherently unclear then, even if lack of clarity cannot be raised, the EPO is likely to give that feature a broad meaning which may not allow a useful distinction over the prior art to be established.
For further information, please see our briefing on this topic, which explores in detail the implications of the Enlarged Board 's decision.
The full judgement can be found here.