5. The Paris Convention for the Protection of Industrial Property

In G 3/93 (OJ 1995, 018) the Enlarged Board held that even though the Paris Convention was not formally binding on the EPO, since the EPC – according to its Preamble – constitutes a special agreement within the meaning of Art. 19 of the Paris Convention, the EPC was clearly intended not to contravene the basic principles concerning priority laid down in the Paris Convention. In G 2/98 (OJ 2001, 413), the Enlarged Board reiterated this principle and sought to ensure consistency with the Paris Convention when interpreting EPC provisions on priority. More specifically, the Enlarged Board looked at the wording of the relevant provisions and the object and purpose of the applicable provision in the Paris Convention in order to ensure consistency in the interpretation of the Paris Convention and the EPC. See also G 3/98 (OJ 2001, 62), G 1/22 and G 2/22 (OJ 2024, A50), T 844/18 and chapter II.D. "Priority".

In G 1/15 (OJ 2017, A82), the Enlarged Board referred to the Paris Convention when interpreting multiple and partial priorities. Paragraphs 2 to 4 of Art. 88 EPC corresponded to Art. 4F and 4H of the Paris Convention, though with the express provision that multiple priorities may be claimed for any one claim (Art. 88(2), second sentence, EPC). The term "elements" used in Art. 88(3) EPC (see also Art. 4F and 4H of the Paris Convention) was not to be understood as a single feature but as subject-matter such as that defined in a claim or disclosed in the form of an embodiment or example specified in the description (see G 2/98, points 4 and 6.2 of the Reasons). Thus, in view of the wording of Art. 88(2) and (3) EPC alone, the argument that partial priority was a concept not present in the European patent system could not hold, which was confirmed by the Paris Convention.

According to the Enlarged Board in consolidated cases G 1/22 and G 2/22, the priority provisions contained in the Paris Convention should not be regarded as a body of exception clauses which should be interpreted strictly. To the contrary, the rules of the Paris Convention and the self-contained priority system of the EPC had to be construed in a manner which ensures that the general purpose of the priority right is fulfilled as far as possible.

In T 844/18, the board recalled that the EPC was a special agreement within the meaning of Art. 19 of the Paris Convention, so the application of its provisions could not contradict the basic principles concerning priority laid down in the Paris Convention. Therefore, the interpretation given to the term "any person" under the EPC and the Paris Convention needed to be the same (see also in this chapter III.H.2.3.1 and III.H.4).