In Short
The Background: There has been a growing trend to invalidate European patents by challenging their formal priority and using intervening prior art. The Technical Boards of Appeal of the European Patent Office ("EPO") referred questions of law to the Enlarged Board of Appeal ("EBA"): first, whether the EPO is competent to assess a party's entitlement to priority; and second, whether a newly added applicant in a Patent Cooperation Treaty ("PCT") application is entitled to claim priority from an application filed by the inventors, if the inventors are designated for the United States only on the PCT request. Read more