2.4.2 Applicability of Article 54(3) EPC in cases of potentially colliding European parent and divisional applications

In T 557/13 of 17 July 2015 several questions concerning partial priorities were referred to the Enlarged Board of Appeal (G 1/15, OJ 2017, A82), see in particular question 1 and 5: 1. Where a claim of a European patent application or patent encompasses alternative subject-matters by virtue of one or more generic expressions or otherwise (generic "OR"-claim), may entitlement to partial priority be refused under the EPC for that claim in respect of alternative subject-matter disclosed (in an enabling manner) for the first time, directly, or at least implicitly, and unambiguously, in the priority document? 5. If an affirmative answer is given to question 1, may subject-matter disclosed in a parent or divisional application of a European patent application be cited as state of the art under Art. 54(3) EPC against subject-matter disclosed in the priority document and encompassed as an alternative in a generic "OR"-claim of the said European patent application or of the patent granted thereon? See chapter II.D.5.3. "Multiple priorities or partial priority for one claim". Question 1 was answered in the negative by G 1/15 (OJ 2017, A82). As a consequence, questions 2, 3, 4 and 5 did not need to be dealt with.

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