Abstract on EPC2000 Art 087(1) for the decision T2643/16 of 03.06.2024

In T 2643/16 of 3 June 2024, the board had to decide whether the applicant was entitled to claim priority from previous applications D1 and D2 when filing the application on which the patent in suit was granted. This was a final decision following interlocutory decision T 2643/16 of 16 February 2023. The board recalled that, in accordance with the order of G 1/22 and G 2/22, it was competent to assess whether a party was entitled to claim priority under Art. 87(1) EPC. In this context, there was a rebuttable presumption that the applicant claiming priority in accordance with Art. 88(1) EPC and the corresponding Implementing Regulations was entitled to claim priority. This rebuttable presumption also applied in situations such as the one in hand, in which the European patent application derived from a PCT application and the priority applicants differed from the subsequent applicant. According to the board, the opponents did not rebut the presumption that the applicant was entitled to claim the priority from applications D1 and D2. The applicant was therefore entitled to claim priority from such applications. Consequently, documents D6, D8 and D9 did not belong to the prior art under Art. 54(2) EPC and could not be considered for assessing inventive step of the claimed subject-matter of auxiliary request 1.