The Enlarged Board G 1/22 and G 2/22: The EPO is competent to assess priority entitlement

and that there is a rebuttable presumption that an applicant claiming priority in accordance with the formal requirements under the EPC is entitled to do so.

The referral by Technical Board of Appeal in cases T 1513/17 and T 2719/19 concerned, firstly, the question whether the EPO is competent to assess a party’s entitlement to claim priority. Secondly, the referral addressed a situation where inventors file a US patent application which is then used as a priority application for a later PCT application in which the inventors are named as applicants for the US only, whereas for European patent protection (legal) persons other than the inventors are named. In such a situation, the question arises whether the co-applicant of a PCT application who is different from the inventors named in the US priority application can in the European phase validly rely on the priority right under Article 87(1) EPC.

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