European Patent Office

Article 36

Citation: OJ EPO 2022, A36

Online publication date: 31.3.2022

BOARDS OF APPEAL

Communication from the Enlarged Board of Appeal concerning cases G 1/22 and G 2/22

In accordance with Article 112(1)(a) EPC, Technical Board of Appeal 3.3.04 has referred the following points of law to the Enlarged Board of Appeal by interlocutory decisions of 28 January 2022 in cases T 1513/17 and T 2719/19 (consolidated proceedings):

I. Does the EPC confer jurisdiction on the EPO to determine whether a party validly claims to be a successor in title as referred to in Article 87(1)(b) EPC?

II. If question I is answered in the affirmative

Can a party B validly rely on the priority right claimed in a PCT-application for the purpose of claiming priority rights under Article 87(1) EPC

in the case where

(1) a PCT-application designates party A as applicant for the US only and party B as applicant for other designated States, including regional European patent protection and

(2) the PCT-application claims priority from an earlier patent application that designates party A as the applicant and

(3) the priority claimed in the PCT-application is in compliance with Article 4 of the Paris Convention?

The text of the referral in English is available on the EPO website under epo.org/law-practice/case-law-appeals/recent/t171513ex1.html for T 1513/17, and under epo.org/law-practice/case-law-appeals/recent/​t192719ex1.html for T 2719/19.

The Enlarged Board of Appeal considering the referrals G 1/22 and G 2/22 will be composed as follows: C. Josefsson (Chairman), I. Beckedorf, F. Blumer, G. Ambrasaitė-Balynienė, R. van Peursem, A. Ritzka, P. Gryczka.

Third parties are hereby given the opportunity to file written statements in accordance with Article 10 of the Rules of Procedure of the Enlarged Board of Appeal (OJ EPO 2015, A35) in one of the official languages of the EPO (English, French or German).

To ensure that any such statements can be given due consideration, they should be filed by 29 July 2022 with the Registry of the Enlarged Board of Appeal, quoting case numbers G 1/22 and G 2/22, and should be marked for the attention of Mr Nicolas Michaleczek ([email protected]).