T 0307/03 (ARCO/Double patenting) vom 03.07.2007

1. The principle of prohibition of double patenting, namely that the inventor (or his successor in title) has a right to the grant of one and only one patent from the European Patent Office for a particular invention as defined in a particular claim is applicable under the EPC , and can be deduced from the provision of Article 60 EPC stating "The right to a European patent shall belong to the inventor or his successor in title" (see point 2.1).

2. Decision T 587/98 (OJ EPO 2000, 497) to the effect (see its point 3.6) that there is no basis in the EPC prohibiting "conflicting claims" not followed (see point 2.7).

3. A double patenting objection can be raised also where the subject matter of the granted claim is encompassed by the subject matter of the claim later put forward, that is where the applicant is seeking to re-patent the subject-matter of the already granted patent claim, and in addition to obtain patent protection for other subject-matter not claimed in the already granted patent. In particular, where the subject matter which would be double patented is the preferred way of carrying out the invention both of the granted patent and of the pending application under consideration, the extent of double patenting cannot be ignored as de minimis. To avoid the objection of double patenting the claims of the pending application should be confined to the other subject-matter that is not already patented, to allow the examination procedure to focus on whether a claim to this other subject-matter meets the requirements of the EPC (see points 5.2 to 5.4).