The New EPO Guidelines for Examination and Their Main Implications for Applicants
A new version of the Guidelines for Examination in the European Patent Office (EPO) entered into force on 1 April 2026. Among the changes introduced in this edition, we draw our readers’ attention to those with the most significant implications for applicants (and, conversely, for opponents). These implications stem from a closer alignment of the Guidelines—and therefore of expected examination practice—with the case law of the Enlarged Board of Appeal.
Earlier filing becomes even more critical following G 1/23
Launching a product that has supposedly “hidden” features before filing a corresponding patent application may now be riskier than in the past, particularly in fields such as materials science, chemistry, biotechnology, and medical devices. This is because any product placed on the market, or otherwise made publicly available, may constitute prior art for a later‑filed European patent application, irrespective of whether certain components or internal structures of the product can be analyzed or reproduced.
This approach reflects the principles established by Enlarged Board of Appeal decision G 1/23 (2025), now fully incorporated into the Guidelines. In that decision, the Enlarged Board clarified that a product put on the market before the filing date of a European patent application cannot be excluded from the state of the art merely because its composition or internal structure could not be analyzed and reproduced by the skilled person at that time. Reproducibility is deemed satisfied by the skilled person’s ability to obtain and possess the product.
As a result, filing a European patent application before any commercialization, demonstration, distribution, customer supply, or other non‑confidential disclosure remains best practice. Applicants can no longer rely on “hidden” or non‑analyzable features of a product to preserve novelty in a subsequently filed application. Conversely, opponents may benefit from this clarified standard when relying on public prior use to challenge the validity of European patents in opposition proceedings.
Selection inventions based on subranges: novelty assessed solely under the “gold standard”
For selection inventions involving the selection of a subrange from a broader known range, applicants can no longer rely on arguments such as:
- the subrange being narrow compared with the known range,
- the subrange being sufficiently far removed from disclosed examples, or
- the skilled person not having “seriously contemplated” the selected subrange.
The former novelty test based on these three criteria has been replaced by the general “gold standard” for novelty, which is exclusively concerned with whether the claimed subject‑matter is clearly and unambiguously disclosed in the prior art, in line with established Enlarged Board jurisprudence.
Whether this new approach integrated in the new Guidelines proves more or less favorable to applicants than the former test is highly fact‑dependent. By way of example, in T 1688/20 (2022)—one of the first Board of Appeal decisions to depart from the traditional three‑criteria test—the outcome was favorable to the patent proprietor. In that case, an angle subrange of 56° to 59° was held to be novel over a previously disclosed range of 50° to 60°, because, in the absence of more specific information, a range defined only by its boundaries did not disclose a more specific technical feature, such as a specific value within that range.
However, under the 2026 Guidelines, the outcome would likely be different in cases involving overlapping endpoints or where even a single example falls within the claimed subrange. In such situations, novelty would generally not be acknowledged.
Drafting additional fallback positions has thus become increasingly essential. However, in view of the strict standard applied by the EPO when assessing added subject‑matter and the requirement to demonstrate a technical effect for inventive‑step purposes, merely drafting long lists of distinct sub‑ranges may not be sufficient unless these are accompanied by further measures that address all requirements of the European Patent Convention (EPC).
Claim interpretation: description and drawings always matter (G 1/24)
Applicants should carefully review the description and any drawings with claim construction in mind, because, following Enlarged Board of Appeal decision G 1/24, the description and any drawings must always be consulted when interpreting the claims, and not only when the claim wording is unclear.
For the same reason, any amendments to the description, particularly those made to adapt the description to amended claims—as routinely required by the vast majority of European examiners and sometimes even unilaterally made by examiners in the communication of intention to grant—should be scrutinized with great care. Unless a different outcome emerges from the pending referral G 1/25, this routine requirement and examiner’s practice may continue in the future.
Any inconsistencies or overly restrictive statements present in the description as filed or introduced during description adaptation may have an impact on claim interpretation and, ultimately, on patentability. However, as stated by T 2027/23, which was issued after G1/24 and provided its conclusions after considering, at least to some extent, different court practices, including that of the Unified Patent Court, national practices of EPC member states and non-European practices, “consulting” is not to be understood such that a claim should be interpreted, based on features set out in embodiments of an invention, as having a meaning narrower than the wording of the claim as understood by the person skilled in the art.
Conclusions
The 2026 edition of the EPO Guidelines marks a consolidation of examination practice around Enlarged Board of Appeal jurisprudence, with tangible consequences for applicants. Taken together, the changes underscore the importance of earlier filing strategies, careful management of public disclosures, robust drafting of fallback positions, and meticulous alignment between claims and description throughout prosecution. Applicants who continue to rely on doctrinal “safety nets” or on post‑filing argumentation rather than on the quality and timing of their original disclosure face increased prosecution and opposition risks. At the same time, greater doctrinal clarity may contribute to enhancing predictability—benefiting parties who adapt their filing and drafting strategies to the evolving legal landscape.
