In T 495/06 the appellant's argument that the amendments were "not inconsistent" with the original disclosure failed to persuade the board, since the applicant thereby invoked a less stringent criterion for compliance with Art. 123(2) EPC than that developed in the jurisprudence of the boards of appeal, namely the question whether the amendment was "directly and unambiguously derivable" from the application documents as originally filed. In other words, the fact that an amendment was "not inconsistent" with the description was not a sufficient requirement for complying with Art. 123(2) EPC.

In T 962/98 the appellant argued that the claimed subject-matter derived from Example 1D and the content of the application as originally filed. In particular, tests carried out on the composition of Example 1D showed that the "four surfactants" could be applied in a more general context, present claim 1 being, furthermore, consistent with the description. Contrary to the appellant's submissions, in order to assess whether an amendment complied with the requirements of Art. 123(2) EPC 1973, the question was neither whether or not a skilled person could design other compositions in the light of the directions given by the tests nor whether or not the amended subject-matter was consistent with the description.

In earlier decisions, such as in T 514/88 (OJ 1992, 570) the boards observed that the relevant question was whether or not the amendment was "consistent with the original disclosure"; the boards clarified, however, that this meant direct and unambiguous derivability from and no contradiction of the totality of the original disclosure (see also T 527/88 and T 685/90).