2.4.1 Introduction

In G 1/22 and G 2/22 the Enlarged Board concluded that there is a rebuttable presumption under the autonomous law of the EPC that the applicant claiming priority in accordance with Art. 88(1) EPC and the corresponding Implementing Regulations is entitled to claim priority. This presumption is justified in view of the purpose of the priority rights, the lack of formal requirements for the transfer of priority rights and the presumed common interest of the priority applicant and the subsequent applicant (G 1/22 and G 2/22, points 101 et seq. of the Reasons and point I of the Order). The considerations leading to the presumption of priority entitlement apply to any case in which the subsequent applicant is not identical with the priority applicant but receives the support of the priority applicant required under Art. 88(1) EPC (G 1/22 and G 2/22, point 107 of the Reasons). See also T 2719/19 of 20 November 2023 date: 2023-11-20, T 2360/19, T 2516/19, T 2689/19, T 521/18 of 7 March 2024 date: 2024-03-07, T 2224/21, T 2643/16 of 3 June 2024 date: 2024-06-03, T 1975/19, T 419/16 of 24 June 2024 date: 2024-06-24 in this chapter II.D.2.5.3, II.D.2.5.4 and II.D.2.6.1.

According to the Enlarged Board, the presumption should be rebuttable since in rare exceptional cases the priority applicant may have legitimate reasons not to allow the subsequent applicant to rely on the priority (G 1/22 and G 2/22, points 106 to 108 of the Reasons and point II of the Order).

The rebuttable presumption also applies in situations where the European patent application derives from a PCT application and/or where the priority applicant(s) are not identical with the subsequent applicant(s). See in this chapter II.D.2.5.1 and II.D.2.6.1.

The presumption of priority entitlement and its rebuttal are, like the priority entitlement in general (see in this chapter II.D.2.3), subject to the autonomous law of the EPC only. There is no room for the application of national laws on legal presumptions and their rebuttal. It cannot be excluded, however, that in the context of the rebuttal of the presumption national laws need to be considered as well. For example, the existence of legal entities being parties in transfers of priority rights may be relevant and may need an assessment under national laws (G 1/22 and G 2/22, points 111 and 133 of the Reasons; for the application of national law to determine whether a legal entity exists, see G 1/13 (OJ 2015, A42) summarised in chapter V.A.2.4.3d)). For case law prior to G 1/22 and G 2/22 where national law was considered, see in this chapter II.D.2.7.2.

If the requirements under Art. 88(1) EPC are not fulfilled, the subsequent applicant is barred from claiming priority for this reason alone. The fulfilment of these procedural requirements is not covered by the presumption. This is reflected in the Order in G 1/22 and G 2/22 where compliance with Art. 88(1) EPC and the corresponding Implementing Regulations is set as a condition for the rebuttable presumption of priority entitlement. (G 1/22 and G 2/22, point 132 of the Reasons and point I of the Order).