Recent Developments at the EPO: Moldova becomes 40th EPC Contracting State, Decision T0412/23 & Role of Description: G1/26

Moldova is 40^th contracting state of the European Patent Convention

On June 1, 2026, the Republic of Moldova became a full member of the European Patent Convention. Even prior to its accession, European Patents could be validated in Moldova. However, Moldova’s full integration into the European patent system significantly simplifies the decision-making process regarding patent protection in this country.

In particular, the previously required separate request for validation and payment of the associated validation fee at the beginning of the European patent application procedure are no longer necessary. For all European patent applications filed on or after June 1, 2026, Moldova is automatically covered by the flat-rate designation fee for all designation states, currently set at 720 €.

As a result, applicants no longer need to decide at the filing state whether patent protection in Moldova is required. Instead, this decision can be deferred to a more advanced stage of the patent proceedings, for example upon receipt of the intention to grant (Communication under Rule 71(3) EPC).

A historical look back: The European Patent Convention started in 1977 with just 7 member states: Belgium, France, Germany, Luxembourg, Netherlands, Switzerland, and the United Kingdom

Today, the European Patent Organisation brings together 40 member states – including all 27 EU countries as well as several non-EU nations such as Norway, Iceland, and Türkiye. The graphic below illustrates the Organization’s expansion from seven member states in 1977 to 40 member states today.

Further information on the accession of Moldova can be found on the EPO website:  https://www.epo.org/en/news-events/news/republic-moldova-become-40th-epo-member-state

Decision T 0412/23 – Combination of three documents of different complexity

In the recent decision T 0412/23, a Technical Board of Appeal of the EPO ruled that, when combining the teachings of three documents in the assessment of inventive step, the analysis must be conducted in a step-by-step manner. In other words, to demonstrate a lack of inventive step based on three documents, the person skilled in the art would typically start from a first document (representing the closest prior art, for example a specific device or process) and then turn to a second document in order to solve a particular technical problem. Only on the basis of the result of this initial combination (i.e., an intermediate device or process) would the skilled person consider consulting a third document – and only if its teaching is compatible with the intermediate solution thus obtained.

This decision was issued in the context of a method for determining a suitable color variant for painting a car without the need for expensive equipment or extensive color charts. It specifically emphasizes that the relatively low level of complexity of the second document (i.e., the intermediate teaching) was incompatible with the highly complex disclosure of the third document. However, the relevance of this decision does not appear to be limited to such specific circumstances. Rather, it may provide useful arguments in a broader range of cases, particularly where examining divisions or opponents attempt to dissect different technical aspects of a claim and argue that each aspect is independently obvious in view of separate pieces of prior art.

The full text of the decision can be found here:  https://www.epo.org/boards-of-appeal/decisions/pdf/t230412eu1.pdf

New referral on role of description: G1/26

A new referral, G 1/26, is pending before the Enlarged Board of Appeal of the EPO. It represents the latest milestone in the ongoing rulings of the role of the description in patent claim interpretation when assessing patentability and the validity of granted patents. G 1/26 focuses on the role of the description in the assessment of added subject-matter.

Technical background: The new referral originates from opposition proceedings concerning a patent relating to coated steel strips (EP 3 587 104). Claim 1 required that the titanium-to-nitrogen ratio be “in excess of 3.42”. However, the claim did not specify any reference basis for the ratio and expressed it merely as a unitless value.

The opponent argued that the omission of the qualification “by weight” broadened the technical teaching of the claim. In particular, the claim wording could be understood as encompassing other technically meaningful interpretations, such as a molar ratio. Since such interpretations had not been disclosed in the application as originally filed, the opponent maintained that the claim contained added subject-matter contrary to Article 123(2) EPC.

Relevant prior decisions: Under established European patent law, the so-called Gold Standard — formulated by the Enlarged Board in decision G 2/10 — requires that any amendment must be directly and unambiguously derivable by the skilled person from the application as originally filed.

According to the recent decision G 1/24, the Enlarged Board held that the description and drawings must always be consulted when interpreting claims for the purpose of assessing patentability.

Key Question: G 1/26 raises the question whether this principle should also apply in the context of added subject-matter. The key issue referred to the Enlarged Board can be summarized as follows:

Is it sufficient that only the interpretations of the subject-matter of the claim established against the background of the patent specification as a whole are directly and unambiguously derivable from the application as filed?

In other words, should the assessment of added subject matter be based solely on the claim wording taken in isolation, or should the claims be interpreted in light of the description and drawings, as required by G 1/24 for patentability assessments?

Practical Consequences: If the Enlarged Board concludes that claim language must be interpreted in the context of the patent specification as a whole—even when assessing compliance with Article 123(2) EPC—features disclosed only in the description may effectively be taken into account when determining the claimed subject-matter.

Such an approach could soften the traditionally strict application of the Gold Standard and reduce the risk that a claim is found to contain added subject-matter merely because an implicit limitation disclosed in the description is not expressly recited in the claim language itself.

Timeline: The Enlarged Board of Appeal has now invited the President of the EPO and members of the public to submit observations by 30 November 2026. Oral proceedings are expected to be scheduled for 2027.

The full text of the referral is available here: T_0873_24_Interlocutory_decision_of_Technical_Board_of_Appeal_of_3_February_2026.pdf (epo.org)

Legal notice:

This report provides information on legal issues and developments of interest in the field of intellectual property. No claim is made as to the completeness or accuracy of the information contained therein.  This report does not constitute legal advice, and no liability is assumed for its content. As intellectual property laws and legal systems are complex and multi-faceted, we recommend obtaining professional advice regarding any specific issue before taking action based on the  information contained in this report.