EBA decision on double patenting G4/19

05.07.2021

The Enlarged Board of Appeal (EBA) recently issued its decision G4/19 relating to double patenting



G4/19 decision deals with double patenting, namely the prohibition of having two patents being granted to the same applicant for one invention.

Such principle of prohibiting double patenting is acknowledged in many European states: this is the legal basis the Enlarged Board of Appeal (EBA) found to prohibit double patenting.

The Enlarged Board of Appeal answered the referred questions as follows:

1. A European patent application can be refused under Articles 97(2) and 125 EPC if it claims the same subject-matter as a European patent which has been granted to the same applicant and does not form part of the state of the art pursuant to Article 54(2) and (3) EPC.
2.1 The application can be refused on that legal basis, irrespective of whether it:
a) was filed on the same date as, or
b) is an earlier application or a divisional application (Article 76(1) EPC) in respect of, or
c) claims the same priority (Article 88 EPC) as the European patent application leading to the European patent already granted.
2.2 In view of the answer to Question 2.1 a separate answer is not required.

This decision will not change the practice of EPO.

Press communiqué with full decision can be found here.

 


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