The Enlarged Board of Appeal (EBA) has confirmed that for disclosed and undisclosed disclaimers separate tests have to be applied in order to evaluate whether or not the disclaimers contradict Art.123 (2).

The test explained in G1/03 continues to be the only test to evaluate undisclosed disclaimers. For disclosed disclaimers (those described in the application as an embodiment) the gold standard test as defined in G2/10 is applied, that is, it is necessary to evaluate if the matter that remains in the claim after the introduction of the disclaimer complies with Art.123 (2) in the sense that it is described explicitly or implicitly, and directly and unambiguously in the application as filed.

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