D. Priority

Overview

D. Priority

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2.Applications giving rise to a right of priority: 2.1.Application filed in or for a state which is party to the Paris Convention or a member of the WTO
2.2.Right of priority of the applicant or his successor in title
2.2.1General
2.2.2Applicable law – proof of transfer
2.3.National deposit of industrial design
2.4.Exhibition priority
2.5.Postdating of the previous application
2.6.Multiple exercise of the right of priority for one contracting state
3.Identity of invention: 3.1.Disclosure in the previous application of the invention claimed in the subsequent application
3.1.1G 2/98 – interpretation of "the same invention"
3.1.2G 2/98 and the concept of disclosure – interpretation in the same way as for Art. 123(2) EPC
3.1.3Disclosure in the previous application as a whole
3.1.4Reference to common general knowledge
3.1.5Explicit or implicit disclosure of the features of the invention in the priority document
a)Example cases – features of the invention all disclosed in the priority document
b)Example cases – features of the invention not all disclosed in the priority document
3.1.6Enabling disclosure in the priority document
3.1.7Error margins and definitions of limits
3.1.8Selection from generic disclosure
3.1.9Inventions relating to nucleotide and amino acid sequences
3.2.Claiming in the subsequent application the invention disclosed in the previous application
4.First application in respect of the invention: 4.1.Identity of invention
4.2.Identity of applicant
5.Partial and multiple priorities: 5.1.Publications during the priority interval – effect on elements of the European patent application not entitled to priority
5.2.Different priorities for different parts of a European patent application
5.3.Multiple priorities or partial priority for one claim
5.3.1Development of the case law after G 2/98 in respect of generically formulated "OR" claims
5.3.2Referral case G 1/15 ("Partial priority")
5.3.3Application of G 1/15 in the jurisprudence of the boards

New decisions

T 2719/19

The following questions are referred to the Enlarged Board of Appeal:

I. Does the EPC confer jurisdiction on the EPO to determine whether a party validly claims to be a successor in title as referred to in Article 87(1)(b) EPC?

II. If question I is answered in the affirmative Can a party B validly rely on the priority right claimed in a PCT-application for the purpose of claiming priority rights under Article 87(1) EPC in the case where

1) a PCT-application designates party A as applicant for the US only and party B as applicant for other designated States, including regional European patent protection and

2) the PCT-application claims priority from an earlier patent application that designates party A as the applicant and

3) the priority claimed in the PCT-application is in compliance with Article 4 of the Paris Convention?

T 1513/17

The following questions are referred to the Enlarged Board of Appeal:

I. Does the EPC confer jurisdiction on the EPO to determine whether a party validly claims to be a successor in title as referred to in Article 87(1)(b) EPC?

1) a PCT-application designates party A as applicant for the US only and party B as applicant for other designated States, including regional European patent protection and

2) the PCT-application claims priority from an earlier patent application that designates party A as the applicant and

3) the priority claimed in the PCT-application is in compliance with Article 4 of the Paris Convention?

T 924/15

Priority claim held invalid in view of the transfer of the priority right within the priority year (Reasons, 3.)

T 725/14

Priority claim held invalid in view of the transfer of the priority right within the priority year (reasons, 4).

OJ Supplementary Publications

Case law 2021
Case law 2020: ABl. EPA 2021, Zusatzpublikation 2
OJ EPO 2021, Supplementary publication 2
JO OEB 2021, Publication supplémentaire 2
Case law 2019: ABl. EPA 2020, Zusatzpublikation 4
OJ EPO 2020, Supplementary publication 4
JO OEB 2020, Publication supplémentaire 4

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D. Priority

D. Priority

1.Introduction

2.1.Application filed in or for a state which is party to the Paris Convention or a member of the WTO

2.2.Right of priority of the applicant or his successor in title

2.2.1General

2.2.2Applicable law – proof of transfer

2.3.National deposit of industrial design

2.4.Exhibition priority

2.5.Postdating of the previous application

2.6.Multiple exercise of the right of priority for one contracting state

3.1.Disclosure in the previous application of the invention claimed in the subsequent application

3.1.1G 2/98 – interpretation of "the same invention"

3.1.2G 2/98 and the concept of disclosure – interpretation in the same way as for Art. 123(2) EPC

3.1.3Disclosure in the previous application as a whole

3.1.4Reference to common general knowledge

3.1.5Explicit or implicit disclosure of the features of the invention in the priority document

a)Example cases – features of the invention all disclosed in the priority document

b)Example cases – features of the invention not all disclosed in the priority document

3.1.6Enabling disclosure in the priority document

3.1.7Error margins and definitions of limits

3.1.8Selection from generic disclosure

3.1.9Inventions relating to nucleotide and amino acid sequences

3.2.Claiming in the subsequent application the invention disclosed in the previous application

4.1.Identity of invention

4.2.Identity of applicant

5.1.Publications during the priority interval – effect on elements of the European patent application not entitled to priority

5.2.Different priorities for different parts of a European patent application

5.3.Multiple priorities or partial priority for one claim

5.3.1Development of the case law after G 2/98 in respect of generically formulated "OR" claims

5.3.2Referral case G 1/15 ("Partial priority")

5.3.3Application of G 1/15 in the jurisprudence of the boards