UPC Court of Appeal: Original Disclosure

An impermissible extension ("added matter") exists if the granted claim comprises subject matter that goes beyond the content of the original application. In order to determine whether an impermissible extension exists, the court must therefore first determine what the skilled person, with the aid of their general technical knowledge, would objectively and unequivocally and directly derive from the entirety of the original application on the filing date. Implicitly disclosed material must also be taken into account here, that is, content that is a clear and unambiguous consequence of what is explicitly disclosed is also considered part of the content of the application. If it is a divisional application, this requirement applies to every earlier application. The examination for impermissible extension must not be limited to those parts of the original application that the patent proprietor specified as the basis for an amended claim during the examination procedure before the EPO. A correct understanding of these passages requires an appreciation of their content in conjunction with the disclosure of the application as a whole (UPC 14. 2. 2025, CoA 382/2024).