As we have previously reported here and here, the Enlarged Board of Appeal (EBA) of the European Patent Office has been asked to consider three questions regarding the extent to which, if at all, the description of a patent or patent application should be amended to as to be in line with the claims. This is an issue around which there has been a great deal of debate, in particular amongst European Patent Attorneys, who seem to either regard it either as essential for third party certainty as to the scope of a patent, or as an unnecessary waste of time and cost which can do more harm than good.
Well, the EBA preliminary opinion is now out...
Question 1 asks whether, when patent claims are amended during opposition or opposition-appeal proceedings, it is necessary to adapt the description to remove any inconsistency introduced between the claims and description.
EBA answer: This depends on the type of inconsistency: if the inconsistency causes non-compliance with the EPC, then adaptation is required; if it does not, then no adaptation is necessary.
Question 2 concerns which EPC requirements necessitate such adaptation.
EBA answer: The only inconsistencies that are relevant are those that cause noncompliance with the EPC so the Articles or Rules of the EPC that necessitate such an adaptation are those which are not being complied with.
However, the referring decision focuses primarily on Article 84 EPC and identifies two conflicting lines of case law ("First" and "Second") regarding whether Article 84 provides a basis for requiring description adaptation ("First" - yes it does; "Second" - no it doesn't).
The EBA indicates its preliminary view that what it refers to as the "First Line of Case Law"—which supports requiring description adaptation under Article 84 EPC—should be followed, rather than the approach taken in decision T 56/21 (the "Second Line of Case Law"). The Board considers many conclusions in T 56/21 to be inconsistent with decision G 1/24.
Question 3 asks whether the answer differs for examination proceedings versus opposition proceedings.
EBA answer: the Board sees no reason to distinguish between them and answers "No".
Written submissions in response to the EBA opinion are due by 17 April 2026, with Oral Proceedings being held at the EPO on 8 May 2026. The proceedings are public, so I hope they've booked a big room.
