Questions Being Referred to Enlarged Board in G 1/24 Regarding Use of the Description When Interpreting the Claims

As expected, the Board of Appeal in T 0439/22 has now referred questions to the Enlarged Board of Appeal (EBA) to clarify the extent to which the description should be referred to when interpreting the claims. The referral is now pending as G 1/24.

The questions referred by the Board of Appeal are as follows:

1. Is Article 69(1), second sentence EPC and Article 1 of the Protocol on the Interpretation of Article 69 EPC to be applied on the interpretation of patent claims when assessing the patentability of an invention under Articles 52 to 57 EPC?
2. May the description and figures be consulted when interpreting the claims to assess patentability and, if so, may this be done generally or only if the person skilled in the art finds a claim to be unclear or ambiguous when read in isolation?
3. May a definition or similar information on a term used in the claims which is explicitly given in the description be disregarded when interpreting the claims to assess patentability and, if so, under what conditions?

It remains to be seen whether the EBA will accept the referral and, if so, whether the questions will be modified by the EBA before they are answered.