The recent decision in the consolidated cases G1/22 and G2/22 before the Enlarged Board of Appeals effectively redefines the way transfer of the priority right under Article 87 EPC is regarded at the European Patent Office (“EPO”), which affects both patent applicants for and patent opponents to European Patent applications. For the patent applicants, this decision eases the burden of demonstrating the right to claim priority, while for the patent opponents, this raises the bar for challenging that priority claim during opposition proceeding.
Particularly, the Enlarged Board held that:
1. The EPO is competent to make determinations as to entitlement to priority;
2. There is a rebuttable presumption that a party claiming priority is entitled to do so; and
3. The rebuttable presumption applies even where the priority stems from an application (e.g., PCT) with non-identical applicants. Read more