2.2.2 Distinction between title to the subsequent application and priority right

According to the Enlarged Board, in the context of the EPC and the proceedings before the EPO, a strict distinction should be made between the title to the subsequent application (i.e. the right to the European patent) and the priority right. The title to the subsequent application, on the one hand, is subject to national property laws. Its transfer is governed by national laws (to be determined in accordance with national conflict of law rules) and assessed by national courts in view of Art. 60(3) EPC. The right to claim the priority date for the subsequent European application, on the other hand, is a right created under the autonomous law of the EPC and the Paris Convention, the transfer of which should also be assessed under the autonomous law of the EPC (G 1/22 and G 2/22, point 129 of the Reasons). See also T 205/14 in II.D.2.1.

In proceedings before the EPO, the applicant shall be deemed to be entitled to exercise the right to the European patent (Art. 60(3) EPC). The EPO has no power to decide a dispute as to whether a particular applicant is legally entitled to apply for and be granted a European patent in respect of the subject-matter of a particular application. Prior to grant, the determination of questions of entitlement to the right to the grant of a European patent is governed by the Protocol on Recognition. After grant, the national courts are competent to decide on disputes about the title to the European patent for each of the designated contracting states (G 1/22 and G 2/22, point 79 of the Reasons, see also chapter IV.A.4).

According to the Enlarged Board in G 1/22 and G 2/22, Art. 60(3) EPC is not applicable to disputes about the transfer of the priority right, neither directly nor by analogy. In a codified system that has adopted the principles set forth in Art. 31 and 32 of the Vienna Convention, a judge can establish rules going beyond the literal meaning of a legal provision (whether by analogy or otherwise) only if there is a lacuna in the law. The Enlarged Board concluded that there is no lacuna in this respect that could be filled by the application by analogy of Art. 60(3) EPC (G 1/22 and G 2/22, point 89 of the Reasons).