A new reading of decision G1/24 and additional guidance for claim interpretation
In the six months following the publication of decision G1/24 of the Enlarged Board of Appeal of the European Patent Office (EPO), the EPO Boards of Appeal have proposed a variety of applications of this decision, as previously commented on our website.
The Enlarged Board of Appeal had been referred to by a Board of Appeal through an interlocutory decision in a case in which the interpretation of the claims in the light of the description played a crucial role in the assessment of novelty. That Board has now issued its decision and offers a reading of G1/24 that departs somewhat from the earlier decisions applying G1/24.
Procedural background
The case giving rise to decision T0439/22 concerns European patent EP 3 076 804 relating to a heated aerosol-generating article. The opponent challenged the novelty of claim 1 in view of document D1 (EP 2 368 449), which disclosed a tobacco sheet rolled into the form of a straight cylinder. The core of the debate lay in the exact scope of the term “gathered sheet”, which appears in claim 1.
At first instance, the Opposition Division considered that the term “gathered sheet”, understood according to its ordinary technical meaning, designated a sheet folded or convoluted so as to occupy a three-dimensional space, but did not cover a sheet rolled into the form of a cylinder as disclosed in D1. The Division therefore acknowledged novelty and maintained the patent as granted.
The Board of Appeal rightly identifies that the interpretation of this expression is decisive and that the case law diverges widely on the subject of claim interpretation. Some decisions strictly apply the “primacy of the claims”, refusing to rely on the description where the wording of the claims appears clear, while others adopt a more holistic approach consisting in systematically interpreting the claims in the light of the description, on the basis of Article 69 EPC and its Protocol on Interpretation.
Referral to the Enlarged Board – G1/24
During the written proceedings, the Board suggested that clarification by the Enlarged Board was necessary. It noted in particular that the description of the patent contained, in paragraph [0035], a definition of the term “gathered” that was significantly broader than the interpretation adopted by the Opposition Division. The question thus became: can an explicit definition provided in the description be ignored when the meaning of the claim term is clear per se to the skilled person? Faced with this difficulty, the Board referred questions to the Enlarged Board in June 2024, which issued decision G1/24 in June 2025.
By way of reminder, the Enlarged Board clearly established therein that the wording of the claims remains the starting point, but that the description and drawings must always be consulted when interpreting the claims for the purpose of assessing patentability, even if the claim appears clear when read in isolation. The Enlarged Board considers that interpretation cannot be carried out in multiple stages: reading the claim “in itself” and examining it in the light of the description must not be dissociated.
Use of G1/24 in the present case
Upon resumption of the proceedings, in its decision T0439/22, the Board applies the approach prescribed by G1/24. It begins by acknowledging that, when read in isolation, the expression “gathered sheet” would be understood in its usual sense: a sheet folded or crumpled transversely, and not a sheet rolled axially as in D1. However, it applies G1/24 in the sense that “consulting” the description means “considering”, or even “using”, the description together with the wording of the claims in order to interpret them.
The patent contains a definition of the term “sheet” in paragraph 30, and a definition of the term “gathered” in paragraph 35, these definitions establishing that the sheet may be convoluted, folded or “compressed or constricted transversely to the axis of the cylinder”. The Board emphasises that a reader acting in good faith will give particular weight to an explicit definition provided in the description. According to the approach proposed by the Enlarged Board, such a definition must be considered or used if it is technically consistent with the teaching of the patent as a whole. The Board observes that the cylindrical rolling of a sheet, as disclosed in D1, involves transverse compression relative to the axis of the cylinder and therefore corresponds to the definition given in the description. Accordingly, the Board considers that the rolled sheet of D1 constitutes a “gathered sheet” within the meaning of claim 1 as interpreted in the light of the description in accordance with G1/24.
The first-instance decision is therefore reversed and the patent is revoked for lack of novelty in view of D1.
What should be taken from this application of G1/24?
This decision proposes a different use of G1/24 in the interpretation of claims in the light of the description compared with those discussed in our first article on this subject.
The position adopted by this Board confirms the need to draft patent applications with a concern for consistency between the claims and the description. Where one is certain that a definition of a term is usual and well known in the field of the invention, it is risky to provide a definition in the description that differs from the known meaning. The risk is that the term in question will be interpreted by the EPO or a third party to the detriment of the proprietor or the applicant, as was the case in decision T0439/22. Conversely, when carrying out work aimed at building an opposition case against a third party’s patent, definitions appearing in the description may be used to support a particularly advantageous interpretation of the claims. Taking into account a particular definition may potentially increase or reduce the relevance of a piece of prior art, the practice of the various Boards of Appeal and Opposition Divisions continuing to diverge despite decision G1/24.
by Aurélien BARETY, April 7, 2026
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