Decision G1/22-G2/22 of the Enlarged Board of Appeal of the EPO regarding the priority right is out!!

In its decision, the Enlarged Board of Appeal of the European Patent Office (EPO) held that:

• - the EPO is competent to assess whether a party is entitled to claim priority,
• - there is a rebuttable presumption that the applicant claiming priority is entitled to do so.

According to the Enlarged Board, the applicant’s entitlement to priority is presumed to exist if the formal requirements for claiming priority are fulfilled.
This presumption is justified because (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 applicant of the priority application has to provide support to the applicant claiming priority.

The presumption in favour of the applicant is rebuttable and also applies in any case where the priority applicant is not identical to the subsequent applicant and/or where the European patent application derives from a PCT application.