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priority, provided that, at the date of filing the subsequent application, the previous application has been withdrawn, abandoned or refused, without being open to public inspection and without leaving any rights outstanding, and has not served as a basis for claiming a right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

IPPT20251205, UPC CFI, LD Düsseldorf, Roche v Menarini
Priority - “same invention” (Article 87 EPC) is to be interpreted as meaning that a claimed invention is to be regarded as the same invention as the invention in an earlier application if the person skilled in the art can derive the subject-matter of the claim directly and unambiguously from the earlier application as a whole, using general technical knowledge […]. The decisive factor is what the person skilled in the art, using their general technical knowledge and viewed objectively, can immediately and unambiguously derive from the entire application as filed at the time of filing, whereby an implicitly disclosed subject-matter, i.e. a subject-matter that arises clearly and unambiguously from what is expressly mentioned, is also to be regarded as part of the content. No impermissible intermediate generalisation: the skilled person will understand the term ‘essentially’ uniformly to mean within the tolerance range, as is apparent from general technical knowledge and does not require any specific disclosure. The skilled person knows that certain differences in the concentration of the analyte may arise, for example, due to the type of measurement (intermittent every 5 minutes or continuous, cf. page 14, lines 10–13). 

IPPT20251105, UPC CFI, LD Hamburg, Dolle v Farko
Counterclaim for revocation unsuccessful, patent valid and infringed (Article 25 UPCA, Rule 25 RoP). No invalid claim of priority of the first application. (Article 87 EPC) . The term “the same invention” is to be interpreted as meaning that a claimed invention is to be regarded as the same invention as the invention in an earlier application if the person skilled in the art can derive the subject matter of the claim directly and unambiguously from the earlier application as a whole, using general technical knowledge.  (UPC_CoA_382/2024). The person skilled in the art can directly and unambiguously derive features 1.6 and 1.7 from the priority document, even if the features are not explicitly set forth in the priority document. 

IPPT20250513, UPC CFI, LD Düsseldorf, Sanofi v Amgen

Priority: “same invention” (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. 

IPPT20250402, UPC CFI, LD Mannheim, Fujifilm v Kodak - I
Priority - no public prior use (Article 87 EPC): all essential elements of the invention must be directly and unambiguously apparent from the prior application. In this context it is decisive what is being disclosed by the priority document as a whole and the same test as for novelty applies. Therefore, there is no sufficient argument being presented that JP ‘837 lacks disclosure of aspect B, as Defendants limit the disclosure counter to these principles to the claims of the priority document and do not elaborate on the disclosed technical teaching in the document as a whole. Therefore, the relevant priority date is 29 September 2017. The analysis is to be limited to the facts which had been presented in the Statement of Defense and the Counterclaim for Revocation. It is in those briefs that the defendant has to submit reasons why the action shall fail, R. 24(g) RoP and the grounds for revocation have to be presented comprehensively, R. 25(1)(b) and (c) RoP whereas the following briefs have to limit themselves to a response to matters raised in the Reply, R. 29(c) and (d) RoP. Printing plate precursors of Defendants were protected by an at least implicit confidentiality regime. 

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 CFI, 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).