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ARTICLE · 01 NOVEMBER 2023

The Latest Update On G1/22 & G2/22

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In February 2022 two questions were referred to the Enlarged Board of Appeal of the EPO (EBoA) regarding entitlement to priority. The first question asks whether the EPO has jurisdiction to decide...

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In February 2022 two questions were referred to the Enlarged Board of Appeal of the EPO (EBoA) regarding entitlement to priority. The first question asks whether the EPO has jurisdiction to decide whether a priority right has been validly transferred. The second question examines whether the priority claim for the European designation of a PCT application can be deemed to be valid if the PCT application was only filed in the same name as the priority application for the US designation and not for the other designated states. Please see here for our previous article.

EBoA has now published its decision and the results are pro-patentee. The EBoA has confirmed that there is a "rebuttable presumption" that the priority claim is valid. In the EBoA's view, in the absence of clear indications to the contrary, the joint filing of the PCT application demonstrates an "implied agreement" allowing the applicant of the EP designation to rely on the priority right established by

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