Abstract on EPC2000 Art 087(1) for the decision T2132/21 of 13.06.2024

In T 2132/21 the patent claimed priority from a US application filed in the name of four inventors. In the filing of the PCT application leading to the patent, the four inventors were named as applicants for the US only and a corporation was named as applicant for all other states. The appellant (opponent) argued that the priority was not valid because there was no evidence that the priority rights had been transferred to the respondent (patent proprietor) before the PCT application was filed. The board recalled that in G 1/22 and G 2/22 the Enlarged Board had stated that in a situation where a PCT application is jointly filed by parties A and B, (i) designating party A for one or more designated States and party B for one or more other designated States, and (ii) claiming priority from an earlier patent application designating party A as the applicant, the joint filing implies an agreement between parties A and B allowing party B to rely on the priority, unless there are substantial factual indications to the contrary. This was the situation in the case in hand. Thus, the joint filing of the PCT application, in the absence of evidence to the contrary, was sufficient proof of an implied agreement on the joint use of the priority right. The board concluded that, on formal grounds, the priority claim was valid.