One of the EPO’s Technical Boards of Appeal have recently referred questions to the Enlarged Board of Appeal relating to the extent to which amendments incorporating features from dependent claims are open to examination for clarity. The referral is pending as case number G 3/14.
Under Article 84 EPC, claims are required to be clear and concise and to be supported by the description. However, lack of clarity may not be used as a ground of opposition. Nevertheless, when an amendment is made in the course of opposition proceedings (or in the course of an appeal from an opposition) then the amendments are to be fully examined for their compatibility with the requirements of the EPC as a whole (Article 101(3) EPC). It is less clear whether an amendment to incorporate the feature of a dependent claim into the independent claim should be examined for clarity.
The Enlarged Board of Appeal have been asked whether amendments encompassing a literal insertion of dependent claims as granted are to be examined for clarity by an Opposition Division or Board of Appeal. Subsidiary questions have also been asked about the extent to which examination of clarity in such cases may extend to features already contained in the unamended independent claim.