BOARDS OF APPEAL
Information from the Enlarged Board of Appeal
Referrals by the President of the European Patent Office
On 29 July 1998, in accordance with Article 112(1)(b) EPC, the President of the European Patent Office referred the following point of law to the Enlarged Board of Appeal in order to ensure uniform application of the law:
(Language of the proceedings)
1.(a) Does the requirement of the "same invention" in Article 87(1) EPC mean that the extent of the right to priority derivable from a priority application for a later application is determined by, and at the same time limited to, what is at least implicitly disclosed in the priority application?
1.(b) Or can a lesser degree of correspondence between the priority application and the subject-matter claimed in the later application be sufficient in this respect and still justify a right to priority?
2) If question 1.(b) is answered in the affirmative, what are the criteria to be applied in assessing whether the claim in the later application is in respect of the same invention as is in the priority application?
3. In particular, where features not disclosed, even implicitly, in the priority application have been added in the relevant claim of the later application, or where features defined in broader terms in the priority application have been more specifically or more narrowly defined in the later application, can a right to priority nevertheless be derived from the priority application and, if so, what are the criteria which must be met to justify the priority in such cases?
The case is pending under Ref. No. G 2/98.