Could Description Amendments Made During Prosecution At The European Patent Office Affect U.S. Litigation?

Earlier this year, the European Patent Office (EPO) updated some of its Guidelines for Examination in a way that potentially could affect U.S. patent litigation. These Guidelines instruct European patent examiners (and the public) on how the patent prosecution process works—much like the United States Patent and Trademark Office's (USPTO's) Manual of Patent Examining Procedure. For example, the Guidelines detail what form a patent application must be in, what happens during a prior art search, and perhaps most importantly, what should be included in an application. Guideline F-IV 4.3 particularly focuses on the form, contents, and clarity of the claims.

A Stricter Approach

Article 84 of the EPC provides that the "claims shall define the matter for which protection is sought. They shall be clear and concise and be supported by the description."  Guideline F-IV 4.3 interprets this Article to include a prohibition against any inconsistencies between the claims and the