T 2255/12 - Overly formalistic

Key points

• The Board confirms as established case law, that "the assessment of the requirements of Article 123(2) EPC should be done from the standpoint of the skilled person". The Board adds that "this helps to avoid an overly formalistic approach to the assessment of this requirement in which more emphasis is given to the literal content of the original application rather than the technical information that it conveys."

T 2255/12 - link

Reasons for the Decision


Main request


1. Article 123(2) EPC


The respondents [opponents] raised objections under Article 123(2) EPC against all the independent claims of the main request, namely claims 1, 9, 13 and 14. []


1.1.3 The respondent objected to the amendments under Article 123(2) EPC, arguing that original claim 9 referred back to claim 1 but not to claims 5 and 7. Hence, in the respondent's opinion, the combination of the features of original claims 1, 5, 7 and 9 was not disclosed in the original application. It furthermore observed that the list of film-forming agents was arbitrarily restricted to substances disclosed as preferred or most preferred agents.


In this context, the Board observes that, according to the established jurisprudence of the Boards of Appeal, the assessment of the requirements of Article 123(2) EPC should be done from the standpoint of the skilled person (see e.g. T 99/13 of 14 January 2016, point 2.3, and T 667/08 of 20 April 2014, point 4.1.4). This helps to avoid an overly formalistic approach to the assessment of this requirement in which more emphasis is given to the literal content of the original application rather than the technical information that it conveys.