Referrals to the Enlarged Board of Appeal – G 1/22 and G 2/22 (Entitlement to priority)

Under Art. 112(1)(a) EPC, a Board of Appeal refers a question to the Enlarged Board of Appeal if it considers that a decision is required, in order to ensure uniform application of the law or if a point of law of fundamental importance arises.

Technical Board of Appeal 3.3.04 has by interlocutory decisions T 1513/17 and T 2719/19 (consolidated proceedings) referred the following questions to the Enlarged Board of Appeal (referrals pending under G 1/22 and G 2/22 ):

I.  Does the EPC confer jurisdiction on the EPO to determine whether a party validly claims to be a successor in title as referred to in Article 87(1)(b) EPC?

II.  If question I is answered in the affirmative:

Can a party B validly rely on the priority right claimed in a PCT-application for the purpose of claiming priority rights under Article 87(1) EPC in the case where

1.  a PCT-application designates party A as applicant for the US only and party B as applicant for other designated States including regional European patent protection and

2.  the PCT-application claims priority from an earlier patent application that designates party A as the applicant and

3.  the priority claimed in the PCT-application is in compliance with Article 4 of the Paris Convention?



Nikolaus Obrovski
Jeannine Hoppe
Spokespersons of the Boards of Appeal of the European Patent Office