Consulting The Description — But To What End?

Diverging case law on claim interpretation less than a year after G 1/24? (T 439/22)

In June 2025, the Enlarged Board of Appeal (EBA) resolved one of the longest-standing debates in European patent law: must the description always be consulted when interpreting claims for patentability? The answer — a clear "yes" — was intended to bring uniformity. Less than nine months later, however, a new divergence has emerged. While the Boards agree on the obligation to consult, they disagree on what should follow from that consultation.

1. The finding of G 1/24

The EBA's Decision of June 18, 2025, held that "the description and drawings shall always be consulted to interpret the claims ... and not only if the person skilled in the art finds a claim to be unclear or ambiguous when read in isolation". The decision left open what "consulting" should entail in practice, referring to "the existing body of case law from which the applicable principles of claim interpretation