1.7. Competency of the EPO to assess priority entitlement

In G 1/22 (OJ 2024, A50) the Enlarged Board noted that a strict distinction should be made between the title to the subsequent application and the right to claim the priority date for that application. It held that Art. 60(3) EPC does not apply to the right of priority referred to in Art. 87(1) EPC, neither directly nor by analogy. The Enlarged Board concluded that the EPO is competent to assess priority entitlement and that this assessment should be made under the autonomous law of the EPC. Acknowledging the EPO's competence to assess priority entitlement also respected the argument that the EPO, in view of Art. 87(1) EPC, has to assess all aspects of the right of priority. If all four requirements underlying Art. 87(1) EPC are assessed by the EPO, the EPO is competent for all aspects that may be relevant to determine the prior art, enabling it to assess all aspects of patentability. According to the Enlarged Board, there is a rebuttable presumption under the autonomous law of the EPC that the applicant claiming priority in accordance with Art. 88(1) EPC is entitled. As to the competency of the EPO to assess priority entitlement, see also chapter II.D.2.2.