A New Frontier For Added Subject-Matter At The EPO?

At the European Patent Office (EPO), a recent referral of case T 873/24 from the Technical Board to the Enlarged Board of Appeal may clarify whether last summer’s decision in case G 1/24 on claim interpretation may be extended to the analysis of Added Subject-Matter. Already G 1/24 is impacting the assessment of patentability at the EPO, but should this referral be allowed, G 1/24’s effect on the assessment of added matter could result in a real shake up of the EPO’s notoriously strict assessment of support. Nonetheless, a review of how we got here highlights the value of late arguments during the EPO appeal process.

Background

Last summer the EPO’s most senior board (the Enlarged Board of Appeal) heard case G 1/24 regarding a vaping technology, where patentability hinged on how the claims were interpreted. In opposition proceedings, the Patentee had successfully argued that the claim term “gathered sheet” was a term of art, such that the claims could be interpreted without