12/03/2026
The EPO guidelines are a publicly accessible guide to the procedural and substantive regulations in force at the EPO, and are routinely updated to reflect changes in procedure and application of law. The EPO’s new and updated guidelines will come into force on 1 April 2026. In the article below, we briefly discuss some the main changes.
A marked up PDF version of the guidelines with changes can be found here (beware there are 1181 pages in this version!).
Novelty
This year, changes to the EPO guidelines reflect some significant changes to the assessment of novelty.
First, the guidelines have been amended to reflect the Enlarged Board of Appeal Decision G1/23. G1/23 significantly relaxed the conditions in which an earlier prior-use disclosure would be interpreted as novelty destroying prior art. Following G1/23 for example, “a product put on the market before the date of filing of a European patent application cannot be excluded from the state of the art .. for the sole reason that its composition or internal structure could not be analysed and reproduced by the skilled person before that date”. Many practitioners regard the decision as effectively introducing an “on-sale bar” into questions of patentability at the EPO. We discuss this in more detail in our earlier article here.
Second, the law relating to the novelty of selection inventions has been simplified. Previously, a sub-range selected from a broader numerical range disclosed in the prior art could be considered novel, if the selected sub-range was narrow, and if the sub-range was sufficiently far removed from any specific examples disclosed in the prior art. Even then, the selected sub-range was not considered novel if the skilled person, in the light of the teaching of the prior art, would seriously contemplate working in the selected subrange.
This more complicated test is being replaced instead by a reference to the EPO’s preferred gold standard of assessment: “A subrange selected from a broader numerical range of the prior art is considered novel if it cannot be established that, on application of the “gold standard”, the skilled person, using common general knowledge, can directly and unambiguously derive the selected subrange from the prior art (G 2/10, T 1688/20).”
Clarity
The EPO guidance on claim interpretation has now also been clarified to reflect the Enlarged Board of Appeal’s decision in G1/24.
The guidelines at Part F, Chapter IV, Section 4.1 still state that “the meaning of the terms of a claim must, as far as possible, be clear for the skilled person from the wording of the claim alone”. However, Part F, Chapter IV, Section 4.2 of the guidelines, titled “Interpretation”, has been updated to state the need to always refer to “the description and drawings” when interpreting the claims. It is not yet clear whether this will have a positive effect for the patentee or not, due to the additional clarification provided by the guidelines in section 4.2:
However, when assessing patentability, the description and drawings cannot be relied on to read into the claim a restrictive feature not suggested by the wording of the claim.
If, on the other hand, the description provides a special broad definition of a term used in a claim, the claim must be interpreted in the light of that broad definition when assessing patentability, provided this interpretation is technically meaningful.
In other words, where a narrower interpretation of a claim term exists in the description of the application or patent, this narrower meaning will not be read into the claims automatically. Instead, the applicant or patentee will be required to amend the claims. However, claim terms may be given a broader meaning if this is described in the patent / application and if it technically makes sense. Applicants and patentees should therefore exercise caution. We discuss this in more detail in our earlier article here.
The case law in this area is however not yet settled. There is already a similar referral to the Enlarged Board concerning the necessity of amending the description to match the claims (G1/25 discussed here) and a likely secondary referral to the Enlarged Board to discuss whether G1/24 has any effect on considerations of added subject matter (in which the referring Technical Board of Appeal is T 873/24).
Future updates on this point are therefore likely.
Procedural Changes
The guidelines also reflect a change to the necessary standard of evidence required at the EPO. In some instances, the party seeking to rely on a disputed fact would have to provide enough evidence to demonstrate that “on the balance of probabilities” that the fact was true. Such instances in the guidelines have generally been amended to recite the requirement that the EPO follow instead the principle of “free evaluation of evidence”.
“Under the principle of free evaluation of evidence, the respective body takes its decision on the basis of all the relevant evidence available in the proceedings, and in the light of its conviction arrived at freely when evaluating whether an alleged fact is or is not to be regarded true and proven. Free evaluation of admissibly filed evidence relevant for deciding the case at hand means that there are no firm rules according to which certain types of evidence are, or are not, convincing”.
This change appears to be intended to simplify the approach to assessment of evidence used by the EPO.
Elsewhere, changes to the PACE procedure limiting acceleration of an application to the examination stage only are discussed (previously, it was also possible to request an accelerated search) and the guidelines now discuss the possibility of filing European patent applications with drawings in colour, not just in greyscale. While this last change sounds exciting, drawings in colour are still not widely accepted at other patent offices. An applicant filing colour drawings at the EPO could therefore unknowingly create problems for themselves (such as added subject matter problems or problems for priority claims) if the EPO application is part of a wider patent family and if they introduce colour drawings for the European application only.
Links
New Guidelines with tracked changes: Guidelines for Examination in the European Patent Office
This article is for general information only. Its content is not a statement of the law on any subject and does not constitute advice. Please contact Reddie & Grose LLP for advice before taking any action in reliance on it.
