I submitted an amicus curiae brief for the referral G 1/25 (“Hydroponics”) on the adaptation of the description to the claims of European patents and European patent applications.

On the basis of a textual, systematic and historical analysis of the provisions of the EPC in the three official languages defining, in Part III of the Convention and the Implementing Regulations, the requirements of a European patent application, I argue first that the EPC defines the requirement that *the description and the claims* of a European patent application *must be consistent with each other*.

This requirement is expressed in Art. 84, second sentence, second half clause, EPC (according to which “the claims shall be supported by the description”), R. 42(1)(c) EPC and R. 48(1)(c) EPC, which thus represent the legal provisions necessitating the adaptation of the description to amended claims of a European patent application, during examination and examination-appeal proceedings, if the amendment to the claims introduces an inconsistency between the description and the amended claims.

I then argue that the same legal provisions are applicable to European patents, having regard to the principles set out in G 3/14, whenever an amendment to the claims introduces an inconsistency between the description and the amended claims of a granted European patent during opposition and opposition-appeal proceedings.

Through my analysis of the provisions of the EPC in Part III of the Convention and the Implementing Regulations, I argue that it follows already from Art. 78(1) EPC and Art. 83 EPC in combination that the description and the claims, as part of a *unitary* legal document having the function of disclosing the invention in an enabling manner, must be consistent with each other.

This first finding, which I refer to as the “principle of oneness” of the description and the claims, is in line with the principles of interpretation of the claims in examination proceedings established by the Enlarged Board of Appeal in its recent decision G 1/24, where the Enlarged Board reaffirmed the principle of the primacy of the claims in the assessment of patentability and ruled that the description must always be consulted when interpreting the claims.

I then discuss the compatibility of the “principle of oneness” with the principle of the primacy of the claims and argue that they are compatible with each other.

I subsequently move on to a detailed analysis of the requirement of support expressed in Art. 84, second sentence, second half clause, EPC.

I analyse first the text of the provision in the three official languages of the EPC and show that the wording, contrary to the view expressed in T 56/21, defines a *requirement to be satisfied* not only by the claims but also *by the description with regard to the claims*.

I then consider the relationship between the requirement of support in Art. 84 EPC and the requirement of sufficiency of disclosure in Art. 83 EPC.

I observe that *Art. 83 EPC* – unlike Art. 5 PCT – *allows for the situation where a claim is the sole original source of disclosure of subject matter* in an application (provided the disclosure in the claim is clear and complete for the skilled person to carry it out) and I infer from this that the requirement of support in Art. 84 EPC must necessarily be understood as putting a requirement on the description vis-à-vis the claims, as otherwise *it would never be possible to fulfil the requirement of support through amendment of the description*, whenever a claim is the sole original source of disclosure of subject matter and is thus not supported by the original description.

In other words, the interpretation of the requirement of support advanced in T 56/21, according to which this requirement is a requirement *in respect of the claims only*, is untenable under the EPC, because it would imply an *incompatibility between Art. 83 EPC and Art. 84 EPC*.

I continue my systematic analysis of Part III of the Convention and the Implementing Regulations by considering the requirements put on the description by R. 42(1)(c) EPC – which is the basis for the *problem-solution approach* for assessing inventive step at the EPC – in relation to the requirements of inventive step.

I argue on the authority of T 26/81, which considered *the requirement of R. 42(1)(c) EPC* as a mandatory requirement which *cannot be set up as a separate formal criterion independent of inventiveness*, that the description must disclose the patentable invention that is claimed and not some other invention.

From this finding I draw the conclusion that Art. 84, second sentence, second half clause EPC and R. 42(1)(c) EPC form a pair of provisions defining in combination the requirement that the description and the claims of a European patent application must be consistent with each other.

I conclude, on account of G 9/91, Reasons, no. 19 and taking into account the principles of G 3/14, that the same requirement applies in opposition and opposition-appeal proceedings, whenever an amendment to the claims introduces an inconsistency between the description and amended claims of a granted European patent.

I conclude my analysis of Part III of the Convention and the Implemening Regulations by showing that R. 48(1)(c) EPC, R. 49(2) EPC and the practice of the EPO as regards the limitation of the description of divisional applications and applications lacking unity do provide further support to the finding that *the description and the claims* of European patent application and European patents *cannot be in disagreement with each other*, both terminologically and technically.

I then consider Art. 69 EPC and argue, in view of the harmonisation goal expressed in the second Recital of the Preamble of the EPC, that Art. 69 EPC and Art. 84 EPC pursue the same overarching objective: the documents which in combination must disclose the invention for which protection is conferred (in the case of a European patent) or sought for (in the case of a European patent application) must form a coherent and consistent unitary legal document. Art. 69 EPC thus further supports the result of the analysis of the legal provisions in Part III of the Convention.

In the final part of my brief, I consider the evidence available from the Travaux préparatoires to the EPC 1973 as well as the German and Dutch national provisions governing the relationship between description and claims in force at the time when Kurt Haertel drafted his first draft of Convention.

I argue that the legal provisions inthat draft which may be seen as the predecessors of Art. 84 EPC and R. 42(1)(b) were based on the principle, clearly expressed in the German and Dutch provisions of the time, that the description and the claims must be coherent with each other and that the description must not contain any unnecessary matter unrelated to the claimed invention.

I also argue, with reference to document BR 51/70, mn. 24 (concerning unnecessary matter in the application), that this principle appears to have been shared amongst the delegates of the Six that prepared the first drafts of the Convention, and that R. 48(1)(c) EPC is clearly meant to implement the requirement that the description must be free of any unnecessary matter unrelated to the claimed invention, contrary to the view held in T 56/21 on the basis of an analysis of the Records of the Washington Conference on the PCT.

In my analysis of the Travaux préparatoires to the EPC 1973, I also discuss the significance of a passage in document 7669/IV/63 for the interpretation of the requirement of support and I challenge the analysis of this document presented in T 56/21.

I finally show that the deletion of the word “fully” in the formulation of the requirement of support in Art. 84 EPC was not motivated, as argued again in T 56/21, by fear of a restrictive interpretation of the word “description” which would exclude the drawings. By reference to documents BR/158/72 and BR/147/172 I show that the *deletion of the word “fully”* was requested by non-governmental organisations *to avoid* the risk that the requirement of support could be understood as requiring *strict, literal support in the description*.

Furthermore, nothing in the Travaux Préparatoires suggests that the deletion of the word “fully” was meant to allow inconsistencies between the description and the claims.

I conclude that the Travaux Préparatoires to the EPC 1973 support the results of the textual and systematic analysis of the provisions in Part III of the Convention and the Implementing Regulations.

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