2.1 Examining the validity of a right to priority 

As a rule, the division does not examine the validity of a priority right. However, the priority right assumes importance if the prior art under consideration (e.g. an intermediate document, see G‑IV, 3) was made available to the public within the meaning of Art. 54(2) on or after the priority date claimed and before the filing date date of filing, or if the content of the European patent application is wholly or partially identical to that of another European application within the meaning of Art. 54(3) which claims a priority date within that period. In such cases (i.e. where the art in question would be relevant if of earlier date), the division must examine whether the priority date(s) claimed may be accorded to the appropriate parts of the application it is examining and inform the applicant of the outcome and whether, in consequence, the particular prior art under consideration, e.g. the intermediate document, or the other European application forms part of the state of the art within the meaning of Art. 54. Also, in the case of possible conflict with another European application under Art. 54(3), it may be necessary, in addition, to allocate effective dates to the appropriate parts of that other application and to communicate this to the applicant (see also G‑IV, 3). When the division needs to consider the question of priority date, it has to bear in mind all the matters mentioned in F‑VI, 1.3 to F-VI 1.5 above.

If, in the case of a Euro-PCT application where the EPO is acting as a designated or elected Office, the priority document is not on file, substantive examination may nevertheless be started. In such a case, the application may even be refused, where appropriate, for lack of novelty or inventive step, without the priority document being on file, provided that the relevant state of the art is neither an intermediate document nor an Art. 54(3) application. However, no European patent may be granted until such time as the priority document is on file. In that case, the applicant is informed that the decision to grant will not be taken as long as the priority document is missing.

If there are intermediate documents or Art. 54(3) applications and the patentability of the subject-matter claimed depends on the validity of the priority right, substantive examination cannot be finalised as long as the priority document is missing. Where the applicant has complied with Rule 17.1(a) PCT, Rule 17.1(b) PCT or Rule 17.1(b-bis) PCT, they may not be requested to file the priority document. The proceedings have to be stayed and the applicant informed that, since the patentability of the subject-matter claimed depends on the validity of the priority right, substantive examination cannot be finalised until the priority document is on file.