Article 87

1. Any person who has duly filed, in or for
a) any State party to the Paris Convention for the Protection of Industrial Property or
b) any Member of the World Trade Organization,
an application for a patent, a utility model or a utility certificate, or his successor in title, shall enjoy, for the purpose of filing a European patent application in respect of the same invention, a right of priority during a period of twelve months from the date of filing of the first application.

2. Every filing that is equivalent to a regular national filing under the national law of the State where it was made or under bilateral or multilateral agreements, including this Convention, shall be recognised as giving rise to a right of priority.

3. A regular national filing shall mean any filing that is sufficient to establish the date on which the application was filed, whatever the outcome of the application may be.

4. A subsequent application in respect of the same subject-matter as a previous first application and filed in or for the same State shall be considered as the first application for the purposes of determining priority, provided that, at the date of filing the subsequent application, the previous application has been withdrawn, abandoned or refused, without being open to public inspection and without leaving any rights outstanding, and has not served as a basis for claiming a right of priority.
The previous application may not thereafter serve as a basis for claiming a right of priority.

5. If the first filing has been made with an industrial property authority which is not subject to the Paris Convention for the Protection of Industrial Property or the Agreement Establishing the World Trade Organization, paragraphs 1 to 4 shall apply if that authority, according to a communication issued by the President of the European Patent Office, recognises that a first filing made with the European Patent Office gives rise to a right of priority under conditions and with effects equivalent to those laid down in the Paris Convention.

UPC Case Law

Court of First Instance

IPPT20241122, UPC CFI, LD Mannheim, Panasonic v Guangdong OPPO
Given the interpretation of the patent claim (Article 69 EPC): Priorities are validly claimed (Article 87 EPC). 

IPPT20241122, UPC LD The Hague, Plant-e v Arkyne
Valid priority (Article 87 EPC). Requirement of ‘same invention’ in Article 87 EPC is met if the skilled person can derive the subject-matter of the claim of an invention directly and unambiguously, using common general knowledge, from the previous application as a whole (the so-called ‘gold standard’). 

IPPT20240719, UPC CFI, CD Paris, Meril Italy v Edwards Lifesciences

Auxiliary request II - priority right not validly claimed (Article 87 EPC, Article 4 Paris Convention). Rebuttable presumption of the entitlement to priority in favour of the subsequent applicant, provided the latter can demonstrate the acquisition of the right to the title. Later application does not cover the "same invention".

IPPT20240716, UPC CFI, CD Munich, Sanofi-Aventis v Amgen
Priority: “same invention” requirement (Article 87 EPC). A claimed invention is to be considered the same invention as the invention in a previous application if the skilled person can derive the subject-matter of the claim directly and unambiguously, using common general knowledge, from the previous application as a whole (cf. EPO Enlarged Board of Appeal 31 May 2001, G2/98,  ECLI:EP:BA:2001:G000298.20010531).