Rejecting G 2/10 for Sufficiency: T 0987/24 on the Gold Standard
The EPO Board of Appeal confirms that the G 2/10 Gold Standard applies exclusively to added matter. T 0987/24 strictly separates Article 123(2) EPC derivation from Article 83 EPC sufficiency of disclosure.
The "Gold Standard" of direct and unambiguous disclosure established in G 2/10 applies exclusively to the assessment of added matter and cannot be imported into the test for sufficiency of disclosure. In T 0987/24, Technical Board of Appeal 3.2.03 sharply delineated the boundary between Article 123(2) EPC and Article 83 EPC. The panel confirmed that a European patent may provide sufficient information for a skilled person to carry out an invention even if the specific implementation details are not directly and unambiguously derivable from the application as filed.
Why did the opponent view the support pressure limits as contradictory?
The patent at issue, EP 19150164, relates to a working machine equipped with a support plate and a support cylinder designed to alter the ground pressure distribution. The tension in the case centered on two claim features governing the pressure in the support cylinder. Feature 1.7 required the pressure to be set so that the ground pressure under the support plate is "only as high as necessary" to protect the machine from tipping over. Feature 1.8 required that this pressure simultaneously corresponds to at least the ground pressure under a crawler or undercarriage.
The opponent argued that feature 1.7 defined an absolute upper limit, while feature 1.8 defined a lower limit. In scenarios where the pressure needed to prevent tipping was very low, the upper limit would fall below the lower limit. The opponent contended this contradiction rendered the claim impossible to carry out. Furthermore, the opponent argued that the patent failed to disclose exactly how to determine the maximum ground pressure under the crawler, asserting that the disclosure did not meet the Gold Standard required for a clear and complete teaching.
Why does G 2/10 not apply to Article 100(b) EPC?
The Board fundamentally rejected the opponent's attempt to apply the Gold Standard to the assessment of sufficiency under Article 100(b) EPC. The panel explained that the test for added matter under Article 123(2) EPC asks whether an amendment remains within the limits of what a skilled person would derive directly and unambiguously from the original application. In contrast, sufficiency asks whether the patent contains enough information for the skilled person to realize the claimed technical teaching using their common general knowledge (reasons 1.4).
The Board provided a striking illustration of this divergence. If the common general knowledge offers a skilled person a multitude of ways to implement a claimed feature, the invention is sufficiently disclosed. However, selecting just one of those known possibilities and adding it to the claim would likely constitute added matter if that specific selection was not originally disclosed. Consequently, the strict correspondence required by the Gold Standard cannot meaningfully be applied to sufficiency.
How did the Board resolve the dynamic center of gravity dispute?
The opponent also attacked sufficiency based on the patent's use of the term "center of gravity". The opponent noted that changing the pressure in the support cylinder does not shift the static mass center of the machine, making the claimed tipping protection mechanism unworkable.
The Board acknowledged that the patent's terminology was potentially misleading. However, the panel emphasized that the skilled person reads the claim with a mind willing to understand, applying known stability standards such as DIN EN 16228-1. In the context of stability testing, the skilled person understands that the patent refers to a "resulting center of gravity" that incorporates dynamic forces and tipping moments, rather than a purely static mass center (reasons 1.6.3). Because the skilled person routinely calculates these dynamic moments to ensure compliance with safety standards, the feature was entirely executable. The Board therefore set aside the revocation and remitted the case to the opposition division.
What must practitioners change when attacking sufficiency after T 0987/24?
When formulating an attack under Article 100(b) EPC, opponents must strictly avoid conflating the disclosure requirements of Article 83 EPC with the strict derivation rules of Article 123(2) EPC. Arguing that a specific implementation detail is not directly and unambiguously disclosed in the figures or description will fail if the skilled person can bridge the gap using common general knowledge.
To successfully challenge sufficiency, practitioners must demonstrate that the missing information cannot be supplied by routine engineering practice or standard industry calculations. Furthermore, this decision reinforces that apparent contradictions in claim language will be resolved by the skilled person's practical understanding of the technical goal, rather than a rigid, literalist reading of individual limits.