The Enlarged Board of Appeal held that when it has been adjudged by a final decision of a national court that a person other than the applicant is entitled to the grant of a European patent, and that person, in compliance with the specific requirements of Art. 61(1) EPC 1973
, files a new European patent application in respect of the same invention under Art. 61(1)(b) EPC 1973
, it is not a pre-condition for the application to be accepted that the earlier original usurping application is still pending before the EPO at the time the new application is filed.