G 1/25 - Additional rules for claim interpretation

Key points

• The EBA in G 1/25 essentially said that inconsistencies between the description and the claims sometimes must be removed from the application (by amending the description and/or the claims).  The debate on when precisely is lively (see the IPKat blog, the blog of Mr Thomas, and LinkedIn). I have nothing to add to that debate on this weblog for now.
• The debate concerns the interpretation of the order/headnote of G 1/25: "If the claims of a European patent, or patent application, are amended during proceedings before the departments of the EPO, or in appeal proceedings, and the amendment introduces an inconsistency between the amended claims and the description, including any drawings, of the patent, or application, and because of that inconsistency Articles 52 to 57, 76(1), 83, 84, 123(2) or 123(3) EPC are not complied with, it is necessary to adapt the description, including any drawings, to the amended claims so as to remove that inconsistency."
• The EBA gave some additional rules for claim interpretation. 
• These additional rules help to apply the instruction of G1/24 that "The claims are the starting point and the basis for assessing the patentability of an invention under Articles 52 to 57 EPC. The description and drawings shall always be consulted to interpret the claims when assessing the patentability of an invention under Articles 52 to 57 EPC". 
• The EBA, in G 1/25: "G 1/24 is not to be understood as establishing a sequential method under which the claim wording is first construed in isolation and the description and drawings are consulted only at a later stage if uncertainty remains." Instead, "claim interpretation is the result of reading the claims, the description and drawings as a unitary process ("holistic approach")."
• Note, the rejected sequential method involves two aspects: using two steps, and carrying out the second step " only ... if uncertainty remains" after the first step. I'm not so sure what is wrong with proceeding step-by-step, provided you always carry out the second step.  
• "The description and drawings may affect the meaning which the skilled person attributes to the claim wording, but they cannot be used to impose on the claim a limitation or expansion for which the claim wording provides no basis."
• "In line with this approach, a person skilled in the art reading the claim in the context of the description and drawings will try to take a definition found in the description at face value. As long as the definition is technically reasonable and complies with the overall teaching of the claims, description and drawings, the skilled person will read terms in the claim in the sense of the definition, taking into account both the broadening and limiting aspects" (approving of T 439/22, points 3.4 and 6)
• "G 1/24 was concerned with claim interpretation when assessing patentability under Articles 52 to 57 EPC. Its reasoning nevertheless identifies general principles of claim interpretation applied by the Boards of Appeal." (including Art. 123(2))
  
  
• Separately: "38. If, for example, a claim has successfully been amended to meet the requirement of non-obviousness in Article 56 EPC, but a statement in the description, including any drawings, expresses a technical teaching reflecting the claim before this amendment, and this statement thus conflicts with the fulfilment of the requirement of non-obviousness, this inconsistency in the description, including in the drawings, has to be removed."
• I don't know why the EBA does not use the term "inventive step". Non-obviousness sounds American to me. 

EPO 

The link to the decision is provided after the jump.

https://www.epo.org/en/boards-of-appeal/decisions/g250001eu1