Following its decision in January 2020 to uphold the Opposition Division’s decision to revoke EP2771468 (reported here), the Board of Appeal has now issued its written reasons for that decision. As expected, the Board endorses the EPO’s long standing “all applicants” approach i.e. all applicants for a priority application (or their successors in title) should be named on the priority claiming application at its date of filing. The Board also explains why no referral to the Enlarged Board of Appeal was necessary. In this case, the application of the “all applicants” approach meant that crucial priority claims were invalid, resulting in an uncontested lack of novelty over intervening prior art. The EPO’s press release summarising the decision can be found here.
While no appeal of this decision is possible, as discussed in our earlier note, the Patentees could file a Petition for Review by the Enlarged Board of Appeal. We’ll know whether they make this final throw of the dice in about 2 months’ time. Watch this space.