The EPO Enlarged Board of Appeal (EBA) has issued its preliminary opinion on referrals G1/22 and G2/22 concerning entitlement to priority. In thier opinion, EBA considers the referral should be admitted. The EBA also indicates the following questions may be useful to discuss at Oral Proceedings:
- Has the case law always been (implicitly or explicitly) supporting the EPO's competence to assess entitlement to priority? (It has been noted in an amicus curiae brief that objections based on the entitlement to priority became routine in opposition proceedings only from about 2010.)
- Does Article 60(3) EPC have no impact on the interpretation of Article 87 (implying answering question 1 with "yes") or should the latter be understood in the light of the former (implying answering question 1 with "no")?
- Should entitlement to priority be assessed ex officio in examination proceedings?
- Could an assessment of entitlement to priority be made on the basis of the autonomous law of the EPC (i.e., without invoking national law)?
- If the EPO has the competence to assess entitlement to priority rights, is it also competent to assess the entitlement to the priority application of the respective applicant? (From T 844/18 it can be understood that the entitlement of the party filing the priority application to do so and to acquire a priority right should not be assessed.)
Oral Proceedings are scheduled for 26 May 2023.
The referring decision of the Board of Appeal can be found here
Amicus briefs submitted on the pending referrals can be viewed here
The initial announcement by the EPO on the referrals can be found here
