5.3. Previous first application withdrawn

In T 477/06 the board held first that since Euro-PCT application D8 had been deemed withdrawn due to non-payment of the designation fees (R. 23a EPC 1973), it was not prior art under Art. 54(3), (4) EPC 1973 for the application in suit. However, it had been filed by the same applicant and earlier than the priority application. In view of the fact that claimed subject-matter was anticipated by this earlier application, the priority application was not the first application within the terms of Art. 87(1) and (4) EPC 1973 (cf. Art. 8(2)(b) PCT), so that the priority claim was not valid. Hence, the application in suit enjoyed priority only from the date of filing and D8 was prior art under Art. 54(2) EPC 1973. See also T 1222/11 in chapter II.D.5.1.

For the case of a priority held invalid because it was not shown, for the purpose of Art. 87(4) EPC 1973, that at the date of filing of the application from which priority was claimed, a previous first application filed by the applicant in respect of the same invention had been withdrawn, see T 1056/01.