Zusammenfassung von Article 087(1) EPC für die Entscheidung T0781/23 vom 30.01.2025

In T 781/23 the opposition division had held that the patent was entitled to claim priority from the priority document, a US provisional patent application filed in the name of the inventors, with the consequence that documents D12 and D13 did not belong to the state of the art according to Art. 54 EPC. The appellant (opponent) argued that the applicant for the patent in suit was not the successor in title of the applicants for the priority document. The board recalled that, in accordance with decision G 1/22, under the autonomous law of the EPC there is a rebuttable presumption that the applicant claiming priority is entitled to claim priority. Furthermore, the presumption of priority entitlement applies to any case in which the subsequent applicant is not identical to the priority applicant but receives the support of the priority applicant required under Art. 88(1) EPC. Thus, the presumption applied in the case in hand. The board explained that the existence of a presumption of validity implied that it was the burden of the party challenging the applicant's entitlement to priority to prove that this entitlement was lacking. Thus, the appellant's argument that it was on the proprietor to demonstrate that it had the right to claim priority had to fail. Also referring to G 1/22, the board stated that the presumption was rebuttable, for example, in cases of bad faith behaviour of the subsequent applicant or as a result of other proceedings such as litigation before national courts concerning title to the subsequent application. It further stated that the presumption of entitlement existed on the date on which the priority was claimed and the rebuttal of the presumption also had to relate to that date. According to the board, in the case at hand, the appellant had not provided any such evidence to rebut the presumption of priority entitlement. Document D19 was an assignment by the inventors to the applicant of the patent in suit and could not rebut this presumption. The further evidence provided relied on requirements of national law, such as the distinction under French law between the right to the invention and the right to the priority claim. The board was of the view that, following the presumption of priority entitlement existing under the autonomous law of the EPC, considerations based on national law became irrelevant. In light of the foregoing, the board came to the conclusion that the patent was entitled to the priority claimed.