Case law - priority

Question 1

G3/93 Status of document published during the priority period

Answer 1

A document published during the priority period, the technical contents of which correspond to that of the priority document, constitutes prior art citable under Article 54(2) EPC against a European patent application claiming that priority, to the extent that priority is not validly claimed.

This also applies if a claim to priority is invalid due to the fact that the priority document and the
subsequent European application do not concern the same invention because the European
application claims subject matter not disclosed in the priority document.

Question 2

G2/98 Requirement for claiming priority of the “same invention”

Answer 2

The requirement for claiming priority of “the same invention”, referred to in Article 87(1) EPC, means that priority of a previous application in respect of a claim in a European patent application in accordance with Article 88 EPC is to be acknowledged only if the skilled person can derive the subject-matter of the claim directly and unambiguously, using common general knowledge, from the previous application as a whole.

Question 3

G1/15 Partial priority

Answer 3

Under the EPC, entitlement to partial priority may not be refused for a claim encompassing
alternative subject-matter by virtue of one of more generic expressions or otherwise (generic “OR”- claim) provided that said alternative subject-matter has been disclosed for the first time, directly, or at least implicitly, unambiguously and in an enabling manner in the priority document. No other substantive conditions or limitations apply in this respect.

This case is regarded as ending the poisonous divisionals argument.