In T667/08 hatte sich die technische Beschwerdekammer 3.4.01 mit der Frage zu befassen, wann eine Änderung unter A. 123(2) EPÜ zulässig ist.
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It is an undisputed principle in the jurisprudence of the Boards of Appeal of the EPO that an amendment is allowable under Article 123(2) EPC if the subject-matter resulting from the amendment is directly and unambiguously derivable from the original application documents i.e. the description, the claims and the drawings, using common general knowledge. Thereby it is not necessary that the subject-matter resulting from the amendment was explicitly disclosed in the original application.
It is therefore essential, when deciding on issues of added subject-matter, to identify the actual teaching conveyed by the original disclosure, i.e. the technical information that the skilled person reading the original disclosure would have derived from its content (description, claims, drawings) considered in its entirety.
This approach might lead to the identification of subject-matter which has not been explicitly revealed as such in the application as filed, but nevertheless derives directly and unambiguously from its content. Literal support is not required by the wording of Article 123(2) EPC ...