I. An amendment to a claim by the introduction of a disclaimer
may not be refused under Article 123(2) EPC for the sole reason
that neither the disclaimer nor the subject-matter excluded by
it from the scope of the claim have a basis in the application
as filed.
II. The following criteria are to be applied for assessing the
allowability of a disclaimer which is not disclosed in the
application as filed:
II.1 A disclaimer may be allowable in order to:
- restore novelty by delimiting a claim against state of the art
under Article 54(3) and (4) EPC;
- restore novelty by delimiting a claim against an accidental
anticipation under Article 54(2) EPC; an anticipation is
accidental if it is so unrelated to and remote from the claimed
invention that the person skilled in the art would never have
taken it into consideration when making the invention; and
- disclaim subject-matter which, under Articles 52 to 57 EPC, is
excluded from patentability for non-technical reasons.
II.2 A disclaimer should not remove more than is necessary
either to restore novelty or to disclaim subject-matter excluded
from patentability for non-technical reasons.
II.3 A disclaimer which is or becomes relevant for the
assessment of inventive step or sufficiency of disclosure adds
subject-matter contrary to Article 123(2) EPC.
II.4 A claim containing a disclaimer must meet the requirements
of clarity and conciseness of Article 84 EPC.
