5.2. Identity of applicant

In T 5/05 the board stressed that priority could be based only on earlier applications filed by the applicant of the European application or by the applicant’s predecessor in title. Moreover, only such applications could meet the further requirement, derivable from Art. 87(4) EPC 1973, that an application giving rise to the priority right had to be the first application by the applicant or by the applicant’s predecessor in title in respect of the invention. The inventor was not relevant. Applications filed by various applicants figured alongside one another as state of the art within the meaning of Art. 54(2) or (3) EPC 1973.

In T 788/05 the proprietor had been co-applicant in a previous European application D1 with an earlier priority date than that of the patent in suit. The board held that the term "a person" in Art. 87(1) EPC 1973 (or "an applicant" in Art. 88(1) EPC 1973) implied that the applicant was the same for "the first application" (or "previous application" in Art. 88(1) EPC 1973) and for the later application for which a priority right was claimed. In the case of D1, the priority right belonged to the two applicants simultaneously, unless one decided to transfer the priority right to the other, who then became the transferor’s successor in title and this before the filing of the later application. No evidence of such a transfer had been submitted. Since the application in issue was only filed by one applicant, D1 could not represent the "first application" within the meaning of Art. 87(1) EPC 1973. See also T 2360/19 in this chapter II.D.2.6.

In T 1933/12 the application underlying the patent was filed by the patent proprietors A1 and A2 and claimed the priority of D0, also filed by A1 and A2. Prior to D0, however, A2 had filed application D1, whose priority was not claimed but which undisputedly disclosed a gearbox drive in accordance with claim 1 in issue. The patent proprietors argued that D1 could not be considered the first application within the meaning of Art. 87 EPC. Since A2 was the sole applicant for D1 there was no identity of applicant with the patent in suit. The board disagreed. Art. 87(1) EPC did not exclude the (sole) applicant for the first filing sharing his priority right with a third party by filing a subsequent application jointly with the latter, but it did require that the applicant for the first filing, or that applicant’s successor in title, be among the applicants for the subsequent, priority-claiming filing. In such a case, if there was only one additional applicant for the subsequent filing, there was no need to provide proof of the transfer of the priority right to that applicant. In the case at issue, sole applicant A2 for D1 was also one of the applicants for the application leading to the patent, so D1 was the first application (Art. 87(1) EPC). Identity of inventor was not relevant for Art. 87 EPC, which, for the purpose of claiming a right of priority, referred to the applicant (T 5/05). See also in this chapter II.D.2.5.

In T 788/05 and T 1933/12, which precede G 1/22 and G 2/22 (see in this chapter II.D.2), the applicant(s) of the application in suit were not claiming the priority of the earlier application which the opponents argued was the “first application” (cf. cases in this chapter II.D.2).