CABINET CHAILLOT

EPO: right to priority – decisions G1/22 and G2/22 of EBA

Enlarged Board of Appeal (EBA) of EPO recently issued two decisions regarding the right to claim priority when the applicant of the priority application and the applicant of the EP application (whether direct or Euro-PCT) are different.

According to these two decisions, the priority right and its transfer is a matter governed by the autonomous law of the EPC.

The applicant’s entitlement to priority is presumed to exist if the formal requirements for claiming priority are fulfilled. Such presumption is justified because (i) all parties involved normally have an interest that an application may benefit from a priority right, (ii) there are no formal requirements for the transfer of priority rights, and (iii) the applicant of the priority application has to provide support to the applicant claiming priority (e.g. by providing unpublished documents). The presumption is rebuttable and applies in any case where the priority applicant is not identical to the subsequent applicant, and regardless of whether the subsequent application is a PCT application.

The press communiqué of EPO can be found here.

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