Another referral to the EBO: Allowability of disclaimers

There has been another referral to the EBO, and this one is not even on the EPO's website yet (thank you, Simon Roberts, for the pointer!). This one promises to be interesting - it concerns the much debated topic of disclaimers. In G 01/03, the EBO ruled that an amendment to a claim by the introduction of a disclaimer may not be refused under Article 123(2) EPC for the sole reason that neither the disclaimer nor the subject-matter excluded by it from the scope of the claim have a basis in the application as filed. Undisclosed disclaimers are (at least) permissible to restore novelty by delimiting a claim against state of the art under Article 54(3) and (4) EPC, to restore novelty by delimiting a claim against an accidental anticipation under Article 54(2) EPC and to disclaim subject-matter which, under Articles 52 to 57 EPC, is excluded from patentability for non-technical reasons.

In appeal T6810/07-3308, the TBA is now asking the Enlarged Board of Appeal:

Does a disclaimer infringe Article 123(2) EPC if its subject-matter was disclosed as an embodiment of the invention in the application as filed?

One could call this G01/03 in reverse - the allowability of disclaiming an explicitly disclosed embodiment. The referral can be found in the minutes of the oral hearing in T6810/07-3308.