On 19 April 2023, the Board of Appeal of the European Patent Office ("EPO") issued its judgment No. T-2391/18 on the appeal against the Opposition Division's decision to maintain a patent as granted, considering whether non-conformity of the description with the claims can, by itself, invalidate a granted patent. Pursuant to Rule 80 of the EPC, the EPO stated that amendments during the opposition stage should be based on a ground for opposition . However, neither Article 84 of the EPC nor Article 100 of the EPC set forth lack of clarity as a ground for opposition. As such, the EPO concluded that discrepancy between the description and claims is relevant only when it has arisen as a result of a post-grant amendment.
Originally published July 2023
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