Case Law of the Boards of Appeal

In accordance with Art. 87 EPC (unamended in this respect) a European patent application is only entitled to priority in respect of "the same invention" as was disclosed in the previous application. The Enlarged Board of Appeal stated in G 2/98 (OJ 2001, 413) that the concept of "the same invention" was to be interpreted narrowly and equated with "the same subject-matter" in Art. 87(4) EPC 1973. This interpretation means that the priority of a previous application in respect of a claim in a European patent application in accordance with Art. 88 EPC 1973 is to be acknowledged only if the person skilled in the art can derive the subject-matter of the claim directly and unambiguously, using common general knowledge, from the previous application as a whole. The subject-matter of the claim defining the invention in the European application has to be understood as "the specific combination of features present in the claim" (see also T 948/97).