2.2.1 Question referred to the Enlarged Board in consolidated cases T 1513/17 and T 2719/19

In G 1/22 and G 2/22 the Enlarged Board concluded that the EPO is competent to assess whether a party is entitled to claim priority under Art. 87(1) EPC (G 1/22 and G 2/22, OJ 2024, A50, points 112 and 130 of the Reasons, point I of the Order).

Prior to G 1/22 and G 2/22, in most cases where the boards had to assess whether the applicant of a subsequent application was entitled to claim priority under Art. 87(1) EPC the boards had tacitly assumed that they had jurisdiction for such assessment. In T 844/18, where this jurisdiction was challenged, the board affirmed its jurisdiction. Moreover, the board did not see a possibility for applying Art. 60(3) EPC by analogy to the right to claim priority under Art. 87(1) EPC. These views were confirmed in T 2431/17 (together with T 844/18, cited by the Enlarged Board in G 1/22 and G 2/22, point 58 of the Reasons). Notwithstanding, the EPO’s jurisdiction had been questioned by boards of appeal in several cases (see G 1/22 and G 2/22, points 47, 58 and 59 of the Reasons). This led the board in T 1513/17 and T 2719/19 to refer the following question to the Enlarged Board: "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?". To cover all situations where the right of an applicant to claim priority is relevant in proceedings before the EPO, this question was rephrased by the Enlarged Board as: "Is the EPO competent to assess whether a party is entitled to claim priority under Article 87(1) EPC?".

The referring board asked the Enlarged Board a second question concerning the "PCT joint applicants" approach. This is covered in this chapter II.D.2.5.3.