The EPO Enlarged Board of Appeal (EBA) has issued its decision on referrals G1/22 and G2/22 concerning entitlement to priority. The EBA concluded that the EPO is competent to assess priority entitlement and that there is a rebuttable presumption that an applicant claiming priority in accordance with the formal requirements under the EPC is entitled to do so.
The order by the Enlarged Board of Appeal reads as follows:
I. The European Patent Office is competent to assess whether a party is entitled to claim priority under Article 87(1) EPC.
There is a rebuttable presumption under the autonomous law of the EPC that the applicant claiming priority in accordance with Article 88(1) EPC and the corresponding Implementing Regulations is entitled to claim priority.
II. The rebuttable presumption also applies in situations where the European patent application derives from a PCT application and/or where the priority applicant(s) are not identical with the subsequent applicant(s).
In a situation where a PCT application is jointly filed by parties A and B, (i) designating party A for one or more designated States and party B for one or more other designated States, and (ii) claiming priority from an earlier patent application designating party A as the applicant, the joint filing implies an agreement between parties A and B allowing party B to rely on the priority, unless there are substantial factual indications to the contrary.
The full decision can be viewed here
The EPO announcement on the decision can be found here
