Decision G1/22 & G2/22: The Enlarged Board of Appeal simplifies the requirements on transfer of priority right
[12/10/2023]
The Enlarged Board of Appeal of the European Patent Office has just issued its decision in cases G1/22 and G2/22 about entitlement to priority.
Whereas it was previously established that the transfer of the priority right (alone or with the priority application) shall have taken place before the filing date of the subsequent European application and be proven, the Enlarged Board of Appeal introduces a presumption of validity of the priority right if the formal conditions are met.
This presumption is rebuttable, and applies in any case where the applicant of the priority application is not identical to the subsequent applicant.
The Enlarged Board justifies this presumption on the grounds that (i) all parties involved normally have an interest that an application may benefit from a priority right, (ii) there are no formal requirements for the transfer of priority rights, and (iii) the priority applicant must necessarily cooperate, for example so that an official copy of the priority application can be provided.
Furthermore, as to the law applicable to the priority right and its transfer, the Enlarged Board considers that it is the autonomous law of the European Patent Convention, whatever the origin of the applicant.