2.7.1 The "all applicants" approach applied by the boards prior to G 1/22 and G 2/22

In T 844/18 the core issue to be decided was this: "A and B are applicants for the priority application. A alone is the applicant for the subsequent application. Is a priority claim valid even without any assignment of priority right from B to A?" One of several applicants for certain US provisional applications from which priority was claimed had not been named as an applicant in the application leading to the patent in suit. The appellants (patent proprietors) challenged the long-established "all applicants" (or "same applicants") approach applied by the opposition division in line with the boards' case law.

The board found the ordinary meaning of the term "any person" in Art. 87(1) EPC to be ambiguous in all language versions (cf. Art. 4A(1) Paris Convention, Art. 31(1) Vienna Convention). It agreed with T 15/01 (OJ 2006, 153) that the object and purpose of the Paris Convention (cf. Art. 31(1), 33(4) Vienna Convention) was to "safeguard, for a limited period, the interests of a patent applicant in his endeavour to obtain international protection for his invention" and that "the international priority provisions contained in the Paris Convention ... assist the applicant in obtaining international protection for his invention". Rejecting the appellants' interpretation of "any person", which would allow A alone to file another application in another country claiming the same invention without involving B, the board reasoned that the object and purpose of the Paris Convention could not form the basis for favouring one or some persons to the detriment of all other persons who had originally formed part of the group filing a patent application. Moreover, the priority provisions of the Paris Convention had remained essentially unchanged since 1883 and there had been no EPO or national case law clearly adopting the appellants' interpretation. The bar for overturning long-established case law and practice should be very high because of the disruptive effects a change could have. See also T 788/05 in this chapter II.D.5.2.

See, however, T 2360/19 in this chapter II.D.2.6.1.