Rule 43 EPC: Form and content of claims

Text of Rule 43 EPC

In plain English

Rule 43(1) asks for the two-part form “wherever appropriate”: a preamble with the features known in combination from the closest prior art, then “characterised in that” and the new features. It is not mandatory where it would distort the invention, for example for a combination of known elements of equal status, a modified chemical process, a complex system of interrelated parts, or a new chemical compound (Guidelines F-IV, 2.3).

Rule 43(2) limits you to one independent claim per category: product, process, apparatus or use. The exceptions are interrelated products (plug and socket, transmitter and receiver, intermediate and final product), different uses of a product, and alternative solutions to one problem that cannot sensibly be covered by one claim (Guidelines F-IV, 3.2). Unity under Article 82 must still be met.

If the search division thinks the claims breach Rule 43(2), it can invite you under Rule 62a to say which independent claim per category should be searched. Unsearched claims will have to go.

The rest of Rule 43 deals with form. Dependent claims refer back, ideally at the start, and may refer to other dependent claims (Rule 43(4)). The number of claims must be reasonable, and claims beyond 15 cost €290 each, rising to €720 from the 51st (Rule 45 and Rules relating to Fees, item 15). Claims should not refer to the description or drawings except where absolutely necessary (Rule 43(6)), and reference signs in parentheses are encouraged but do not limit the claim (Rule 43(7)).

Multiple dependencies are allowed at the EPO without extra fees, which makes a European claim set quite different from a US one.

Key decisions

• T 56/01 (Network connection card/BELLSOUTH) : Appeal dismissed where the application kept plural independent claims in the same category that did not fall within the exceptions.

Common objections

Two-part form missing

Recast claim 1 against the closest prior art, or explain why the two-part form would be misleading for this invention.

Several independent claims in one category

Merge them, make one dependent on the other where Article 123(2) allows, or show that an exception in Rule 43(2) applies. Otherwise, pursue the rest in a divisional.

Omnibus claim

A claim to the invention “as described with reference to the drawings” is objected to under Rule 43(6) and is usually deleted.

Drafting and prosecution tips

• Plan the claim set as one independent claim per category, with the main fallbacks as dependent claims.
• Use multiple dependencies freely; they cost nothing extra at the EPO and preserve combinations for later amendments.
• Keep to 15 claims where you can, since each extra claim attracts a fee on filing or entry.
• Add reference signs to the claims; the examiner may otherwise add them in the Rule 71(3) text.