4.1. Publications during the priority interval

In G 3/93 (OJ 1995, 18), the Enlarged Board decided that a document published during the priority interval, the technical contents of which corresponded to that of the priority document, constituted prior art citable under Art. 54(2) EPC 1973 against a European patent application claiming that priority, if such priority was not validly claimed. This also applied if a claim to priority was invalid due to the fact that the priority document and the subsequent European application did not concern the same invention because the European application claimed subject-matter not disclosed in the priority document.

The Enlarged Board emphasised that the existence of a right of priority depended, inter alia, on the fulfilment of the requirement of identity of invention, that is, whether the previous application disclosed the same invention as that claimed in the subsequent European application. Where priority was claimed but could not be allowed because the inventions were not the same, there was no right to priority. Consequently, any publication of the contents of a priority document during the priority interval constituted prior art citable against elements of the European application which were not entitled to priority (see T 441/91, T 594/90, T 961/90 and T 643/96; for another view see T 301/87, OJ 1990, 335). T 131/99 stresses that to that extent there is no difference between dependent and independent claims.

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