UPC Court of Appeal: Added subject-matter in the context of earlier applications:

• The court may, when examining an allegation of added matter, of its own motion determine that the skilled person cannot derive a corresponding disclosure from the earlier application. This determination must be made on the basis of the understanding of the skilled person when reading the earlier application as a whole. If the international application is not drafted in one of the official languages of the European Patent Office (EPO), the content of the earlier application is primarily determined by way of translation. The requirement to file a translation in the application proceedings before the European Patent Office is not a purely formal or procedural requirement. With this translation the applicant initially provides the EPO with the application documents in the language of the proceedings on which the EPO will conduct the examination of the application and – in case of amendments to the application documents – will evaluate the compliance with Art. 123 (2) EPC of these amendments. As it is in the applicant’s own interest that the examination is performed on the true content of the application, it can prima facie be assumed that such a translation provided by the patent applicant itself truthfully reproduces the content of the international application in the language of the proceedings of the application. Third parties and the Court may in the context of the assessment of added matter rely on the translation of the application as submitted by the patentee at, and published by, the EPO. If the patentee claims that this translation is incorrect, it will have to demonstrate the inaccuracy (UPC 5 November 2025; CoA 762/2024, CoA 773/2024).
   
• Where, as here, the patent results from a divisional application, this requirement applies to each earlier application. The subject matter of the granted claim 1 thus may not extend beyond (1) the disclosure of the application as filed for the patent in suit and (2) the disclosure of the original PCT application that entered the regional phase and is the earlier application for the divisional application (UPC 2 October 2025; CoA 764/2024, CoA 774/2024).