The EPO Enlarged Board of Appeal (EBA) has now issued their decision on referral G4/19 concerning double patenting at the EPO i.e. two patents being granted to the same person for the same invention.
The EPO Board of Appeal who referred questions to the EBA did not consider there to be a legal basis in the European Patent Convention (EPC) for precluding double patenting. However, the EBA answered the referred questions as follows, confirming that such applications can be refused:
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
- was filed on the same date as, or
- is an earlier application or a divisional application (Article 76(1) EPC) in respect of, or
- 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.
The EPO press announcement and summary can be found here
The G4/19 decision itself can be viewed here
