Added matter or added subject-matter concerns the possibility to amend a patent (application). According to Art. 123(2) of the European Patent Convention (EPC), a European patent (application) may not be amended in such a way that it contains subject-matter which extends beyond the content of the application as filed. Adding subject-matter which is not disclosed would give an applicant an unwarranted advantage and could be damaging to the legal security of third parties. (G 1/93, OJ 1994, 541) The ‘gold standard’ of the European Patent Office’s Board of Appeal is that “any amendment can only be made within the limits of what a skilled person would derive directly and unambiguously, using common general knowledge, and seen objectively and relative to the date of filing, from the whole of the documents as filed” (G 3/89, OJ 1993,117; G 11/91, OJ 1993, 125).
In the search report of the patent application several prior art references were mentioned that were not described in the patent application as originally filed, while they were known to the applicant. The Examining Division had decided that Rule 42(1) EPC 2000 would not allow a later introduction of the discussion of the prior art…
