On October 10, 2023, the Enlarged Board of Appeal of the European Patent Office (EPO) issued a groundbreaking decision that reflects a major change in how formal priority is assessed at the EPO during examination and in post-grant opposition proceedings, to the benefit of applicants/patentees.
Prior to the decision, a European patent could be found not to be entitled to claim priority to its priority date if all applicants on a priority provisional application were not also named as applicants on the International PCT application. Without the benefit of the earlier priority date, intervening references published in the priority year between a provisional application and International PCT application could wipe out novelty and patentability of an invention. This formal review of priority entitlement by the EPO has resulted in revocation of numerous patents in Europe; most famously, Broad Institute’s patent relating to CRISPR gene editing technology was revoked in 2020 for not meeting formal priority entitlement. Read more