The inclusion of a disclaimer, where subject
matter is carved out from the scope of a patent claim by means of a negative
feature is not explicitly allowed for in the European Patent Convention (EPC).
In most circumstances, the subject matter of amendments to European patent
applications must be derivable from the application as filed. However, Enlarged
Board decision G1/03 and G2/10 allowed disclaimers in some circumstances. G1/16
confirms that the criteria for the allowability of an undisclosed disclaimer
set out in G1/03 remain applicable and it is not also necessary for the subject
matter of the disclaimer to be derivable from the application as filed.
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