When Can A Claim Be Broadened After Grant?

It is well established that under Article 123(3) EPC, a patent (i.e. after grant) "may not be amended in such a way as to extend the protection it confers". The rationale behind this legal provision is to provide legal certainty to third parties.

The patent considered in T 2202/19 is directed to a coffee capsule. In the patent as granted, claim 1 defined, inter alia, a closing member (12) comprising "a plurality of discrete blind openings (14)... said blind openings not being concentric grooves". At opposition, the feature of "said blind openings not being concentric grooves" was found to add subject-matter, contravening Article 123(2) EPC, and the proprietor's request to delete this feature was refused because it would have led to a broadening of scope, thereby contravening Article 123(3) EPC.