Enlarged Board of Appeal EPO: The right to claim priority and its transfer are matters of autonomous European Patent Convention law23-10-2023 Print this page
In its decision of 10 October 2023 in G1/22 and G2/22 the Enlarged Board of Appeal of the EPO ruled that it is is competent to assess whether a party is entitled to claim priority under Article 87(1) EPC.
The Enlarged Board underscored that a distinction is to be made between (a) the title to a European patent application (which is subject ot national property laws) and (b) the right ot claim priority, which is created under the autonomous law of the EPC and the Paris Convention, the transfer of which should also be assessed under the autonomous law of the EPC.
Furthermore the Board ruled that there is a rebuttable presumption under the autonomous law of the EPC that the applicant claiming priority in accordance with Article 88(1) EPC and the corresponding Implementing Regulations is entitled to claim priority. The rebuttable presumption also applies in situations where the European patent application derives from a PCT application and/or where the priority applicant(s) are not identical with the subsequent applicant(s).