Challenges to the validity of the “Patent Cooperation Treaty joint applicant” have been a problem for many applicants at the European Patent Office. On October 10, 2023, the EPO’s highest authority, the Enlarged Board of Appeal, issued its decision in the consolidated cases of G 1/22 and G 2/22, confirming the EPO’s competence to assess a party’s entitlement to priority.
Third parties have increasingly challenged the validity of priority claims of European patents during opposition proceedings. Their arguments hinge on the fact that a PCT application is jointly filed in the name of several applicants and the European patent application claiming priority to the PCT application is not jointly filed by the same applicants of the PCT application. This created a situation where, unless clear evidence of a valid transfer of priority rights was available, the Boards of Appeal at the EPO have, in some high-profile instances, revoked patents. Read more