In a noteworthy shift, the European Patent Office (EPO) has recently adopted an approach that leans in favor of patentees when assessing formal priority entitlement. This change could significantly affect the fate of European patents, which have seen an increasing trend toward invalidation through formal priority challenges and intervening prior art.
The Jones Day report indicates that this development stems from the EPO’s Technical Boards of Appeal, which directly referred legal questions to the Enlarged Board of Appeal (EBA). The central questions were as follows:
- Does the EPO have the authority to evaluate a party’s right to priority?
- Is a newly added applicant in a Patent Cooperation Treaty (PCT) application entitled to claim priority from an earlier application?
These questions bear substantial weight in patent law as they directly influence the decision of whether or not a previously added applicant can establish a precedence over earlier applications, and moreover, if the EPO has the jurisdiction to determine these matters.
The full implications of this EPO approach are yet to be seen, but it seems increasingly plausible that patent claimants may find a more receptive path for their patents given the latest adoptions by the EPO. Legal professionals and those involved in patent applications should watch this situation closely for further developments and potential impacts on patent law.