2.2. Right of priority of the applicant or his successor in title
2.2.1 General
Pursuant to Art. 87(1) EPC, a right of priority originates in the applicant of a first application. Therefore, in principle, the applicant has to be the same for the first application and for the subsequent application for which the right of priority is invoked. However, pursuant to Art. 87(1) EPC, the right of priority may also be invoked by the "successor in title" of the person who has filed the first application. By reference to the "successor in title", it is recognised that the right of priority, being a legal right, may be transferred from the original applicant to a third person. It is generally accepted that the right of priority is transferable independently of the corresponding first application and may furthermore be transferred to a third person for one or more countries only. It is an independent right until it is invoked for one or more later applications, to which it becomes an accessory, and it has to be distinguished from the right to the patent deriving either from substantive law or from the status of being the applicant of the first application (T 205/14, with further references; see also T 969/14; and T 1201/14 with further references).
The board in T 844/18 held that the instances of the EPO are empowered and obliged to assess the validity of a priority right claim as required by Art. 87(1) EPC, and this includes examining the issue of "who" concerning priority entitlement. This decision is further referred to in chapter II.D.2.2.2 and 2.2.3). This issue is also addressed in the first question referred to the Enlarged Board of Appeal in G 1/22 and G 2/22 (see chapter II.D.2.2.3).
Concerning succession in title to the right of priority, according to T 1201/14, it is clear from the wording of Art. 87(1) EPC 1973 alone that this must have already taken place when the subsequent application is filed. The board in T 577/11 already confirmed that a succession in title that occurred after the filing date of the subsequent application was not sufficient to comply with the requirements of Art. 87(1) EPC 1973. This finding was in line with Art. 4 Paris Convention and the legislative history of these provisions.
The board in T 969/14 held, with reference to Enlarged Board decision G 1/15 ("Partial priority", OJ 2017, A82), that once it is acknowledged that partial priority rights exist they must also be transferable separately. This, however, has consequences for the remaining priority right, because the assignor is left with a limited right. On partial and multiple priorities, see also in this chapter II.D.5. For decisions concerning the entitlement of co-applicants see in this chapter II.D.2.2.3.
- T 1946/21
Catchword:
1. For the question of whether the applicant is "successor in title" within the meaning of Article 87(1) EPC, it is sufficient for the applicant or patent proprietor to demonstrate that the assignment of the priority right was effective before the subsequent application was filed. The law does not set forth any other condition. In particular, the assignment need not be effective before the filing date of the subsequent application. (see point 2.3). 2. In the context of in-person oral proceedings, a request of a party for a hybrid format to allow the representatives to attend the hearing in person and other attendees to attend remotely should normally be granted only if the participation of the person for whom the access by means of videoconferencing technology has been requested is related to a person whose participation in the oral proceedings is relevant to the case, in particular to the decision to be taken at the oral proceedings (see point 1.).
- 2023 compilation “Abstracts of decisions”