T 0073/88 (Snackfood) vom 07.11.1989

1. A technical feature in a claim of a European patent, which is an essential feature for the purpose of determining the scope of protection conferred, is not necessarily an essential feature or element for the purpose of determining priority. Whether a particular feature is essential for the purpose of priority, and therefore needs to be specifically disclosed in the priority document, depends upon its relationship to the character and nature of the invention. In a case where a feature in a claim is not related to the function and effect of the invention, such feature is not related to the character and nature of the invention, and the absence of such feature from the disclosure of the priority document does not cause loss of priority, provided the claim is otherwise in substance in respect of the same invention as that disclosed in the priority document (Decisions T 81/87 and T 301/87 followed and distinguished).

2. If a technical feature in a claim of a European patent is a more specific embodiment of a feature which is more generally disclosed in the priority document, there is no loss of priority provided that the inclusion of such more specific technical features does not change the character and nature of the claimed invention which therefore remains in substance the same invention as that disclosed in the priority document.

3. If a patentee in opposition proceedings has had his request that the patent be maintained upheld by the Decision of the Opposition Division, he may not file an appeal against reasoning in the Decision which was adverse to him (here: his claim to priority), because he is not adversely affected by the Decision within the meaning of Article 107 EPC (following Decision J 12/85, OJ EPO 1986, 155). In the event of an appeal being filed by an opponent, however, if the patentee wishes to contend that such adverse reasoning was wrong, he should set out his grounds for so contending in his observations under Rule 57(1) EPC in reply to the statement of grounds of appeal, by way of cross- appeal.